LINCOLN  ROOM 

UNIVERSITY  OF  ILLINOIS 
LIBRARY 


MEMORIAL 

the  Class  of  1901 

founded  by 

HARLAN  HOYT  HORNER 

and 

HENRIETTA  CALHOUN  HORNER 


CONSTITUTIONAL  PROBLEMS 
UNDER  LINCOLN 


CONSTITUTIONAL  PROBLEMS 
UNDER  LINCOLN 


BY 

JAMES  G.  RANDALL,  Ph.D. 

ASSOCIATE    PROFESSOR   OF    HISTORY    IN    THE 
UNIVERSITY  OF  ILLINOIS 


D.  APPLETON  AND  COMPANY 

NEW  YORK  LONDON 

1926 


Copyright,  1926,  bt 
D.  APPLETON  AND  COMPANY 


PRTirrED  IN   THE   UNITED  STATES  OF  AMEEICA 


K 


TO 
RUTH  PAINTER  RANDALL 


PREFACE 

It  is  my  belief  that  the  constitutional  developments  of  the 
war  for  the  Union  have  been  of  far-reaching  significance  and 
that  they  deserve  a  much  fuller  treatment  than  they  have  yet 
received.  I  have  also  felt  that,  in  spite  of  the  ever-increasing 
volume  of  biographical  material  concerning  Lincoln,  much 
still  remains  to  be  done  in  close  and  detailed  investigation  of 
the  problems  of  Lincoln's  presidency.  The  present  volume, 
therefore,  has  two  purposes.  Its  primary  appeal  is  to  the 
student  of  American  constitutional  history;  in  addition,  it 
is  hoped  that  some  contribution  may  hereby  be  made  to  a 
fuller  appreciation  of  what  was  actually  involved  in  Lincoln's 
eventful  administration. 

Can  executive  efficiency  be  maintained  amid  a  crisis  and 
constitutional  government  be  still  preserved?  This,  as  I  see 
it,  was  the  central  problem  of  Lincoln's  administration,  and 
in  the  period  of  dictatorships  and  reactionary  governments 
that  has  followed  the  World  War  it  is  a  problem  of  increased 
significance.  To  revert  to  the  strong-man  idea  would  be  a 
backward  step,  but  to  harmonize  constitutional  guarantees 
with  effectiveness  of  governmental  control  involves  many  mat- 
ters of  political  technique.  This  is  assuredly  one  of  the 
major  problems  of  politics,  and  in  its  contemplation  thought- 
ful students  will  turn  increasingly  to  critical  periods  of  Eng- 
lish and  American  constitutional  history.  Renewed  study  of 
Lincoln's  presidency  from  this  angle  should  prove  both  fruit- 
ful and  timely. 

It  is  of  interest  to  ask  how  this  problem  in  its  many  phases 
reacted  upon  Lincoln  himself.  Anglo-Saxon  traditions  were 
very  much  a  part  of  him,  and  by  his  clear  reasoning  he  would 
have  made  a  real  contribution  in  constitutional  interpreta- 
tion had  he  been  placed  in  the  position  of  John  Marshall. 

vii 


viii  PREFACE 

Indeed  Marshall's  biographer,  Albert  J.  Beveridge,  has  drawn 
an  interesting  comparison  between  Lincoln  and  the  great 
Chief  Justice,  showing  that  while  neither  had  profound  legal 
learning,  each  had  the  knack  of  eliminating  technicalities  and 
going  to  the  heart  of  a  constitutional  question.  Part  of 
Lincoln's  reaction  to  his  difficult  situation  was  seen  in  his 
wide  assumption  of  power;  but  the  other  side  is  shown  in  his 
sympathy  for  the  conscientious  objector,  his  leniency  toward 
Valandigham,  his  willingness  to  be  taxed  to  compensate  slave- 
holders, and  his  tolerance  toward  vindictive  opponents  who  had 
no  thought  of  sparing  him. 

In  this  constitutional  discussion  my  purpose  has  been  to 
apply  the  critique  of  historical  research  and  the  canons  of 
historical  interpretation  to  legal  material,  making  only  such 
excursions  into  technical  matters  of  law  as  the  larger  purposes 
of  historical  study  require.  The  emphasis  is  placed  upon 
principles  and  problems  rather  than  "cases."  There  is  much 
to  be  done  in  the  correlation  of  social  and  constitutional  his- 
tory ;  and  in  these  pages  constitutional  questions  are  not  treated 
from  a  legalistic  point  of  view,  but  are  considered  in  their  bear- 
ings upon  the  corporate  development  of  our  nation.  Much  of 
the  significance  of  our  national  unity  is  to  be  found  in  common 
traditions  and  notions  on  matters  of  civil  liberty;  and  our 
character  as  a  distinct  nation  would  be  impaired  if  these  tra- 
ditions were  to  be  abandoned.  Perhaps  the  current  tendency 
to  give  increased  attention  to  constitutional  studies,  as  shown 
in  widely  extended  student  essay  contests  and  in  State  legis- 
lation requiring  the  study  of  the  Constitution  in  the  high  school, 
arises  from  a  recognition  of  this  truth.  The  extent  to  which 
our  flexible,  yet  limiting,  Constitution  has  held  us  together  is 
not  fully  realized  until  the  constitutional  developments  of  a 
period  of  national  testing  are  studied.  When  the  struggle  for 
the  Union  is  reexamined  in  this  light  we  will  better  realize  how 
the  Constitution  enters  into  our  individual  and  corporate  life, 
and  how  vital  are  those  traditions  which  gather  around  it. 

So  little  has  been  done  by  historians  in  searching  the  vol- 
luninous  legal  material  of  the  Civil  War  period  that  I  have 


PREFACE  ix 

felt  myself  to  be  breaking  new  ground.  Where  new  conclu- 
sions appear  in  these  pages,  they  have  come  as  the  result  of 
the  exploration  of  sources  and  the  sifting  of  evidence  rather 
than  from  any  conscious  effort  to  produce  them. 

Confederate  problems  are  not  treated  because  the  book 
has  a  unified  theme  without  them,  and  because  a  constitutional 
study  of  the  Confederacy  is  worthy  of  a  separate  volume. 
The  subject  matter  has  been  limited  in  order  to  allow  a  rather 
full  discussion  of  such  problems  as  are  taken  up ;  and  for  this 
reason  no  treatment  of  the  Reconstruction  period  is  attempted, 
though  the  adjudication  of  war  questions  in  the  courts  is  fol- 
lowed through  the  years  after  the  war. 

I  completed  in  1911  for  the  University  of  Chicago  a  doctoral 
dissertation  on  "The  Confiscation  of  Property  during  the  Civil 

War";  and  with  this  introduction  to  the  legal  problems  of  the 
war  I  was  led,  by  the  advice  of  Prof.  A.  C.  McLaughlin 
to  undertake  the  present  work,  the  preparation  of  which 
has  occupied  fifteen  years.  The  same  methods  of  orig- 
inal research  and  a  proportional  amount  of  time  have  been 
devoted  to  the  various  other  constitutional  questions  as  were 
given  to  the  subject  of  confiscation,  on  which  subject  my 
earlier  work  has  been  subjected  to  further  study  and  revision. 
Three  articles  coming  within  the  field  of  this  book  have  ap- 
peared in  the  American  Historical  Review  (XVIII,  79-96; 
XIX.  65-79;  XXIII,  303-323),  and  the  chapter  on  the  In- 
demnity Act  of  1863  appeared  as  an  article  in  the  Michigan 
Law  Review  of  April,  1922  fXX,  589-613). 

In  the  critical  bibliography  and  the  footnotes  a  sufficient 
indication  is  given  of  my  sources.  The  extensive  legal  ma- 
terial and  published  collections  necessary  for  a  study  of  this 
subject  have  been  thoroughly  searched;  but  to  a  large  extent 
the  basis  of  this  book  has  been  found  in  unpublished  archives 
and  manuscripts,  much  of  which  material  has  been  brought 
under  historical  scrutiny  for  the  first  time.  The  files  and 
docket  books  of  the  Federal  courts  in  various  cities  have  been 
examined;  State  archives  have  been  searched;  and  the  papers 
of  the  Attorney  General's  oflBce  have  been  extensively  used. 


X  PREFACE 

In  addition  I  have  scanned  the  records  of  the  State  and 
Treasury  departments,  and  the  elaborate  manuscript  col- 
lections in  the  Library'  of  Congress.  I  have  used  in  manu- 
script a  significant  new  source  for  the  Lincoln  administration, 
the  diary  of  Senator  Orville  H.  Browning  of  Illinois,  which 
is  being  edited  by  Prof.  T.  C.  Pease  and  myself.  The  volu- 
minous notes  derived  in  the  course  of  my  researches  have 
required  much  sifting,  and  I  have  been  conscious  at  every 
turn  of  an  effort  toward  condensation.  In  order  to  spare  the 
reader,  many  things  have  been  left  in  the  inkpot,  or  to  be 
exact,  in  the  author's  files. 

To  Prof.  C.  H.  Van  Tyne  I  owe  valuable  training  in  his- 
torical method,  besides  friendly  encouragement  and  a  strength- 
ening of  my  purpose  to  specialize  in  historical  study.  It  was 
under  Professor  Van  Tyne's  stimulating  guidance  that  I  made, 
in  the  preparation  of  a  seminar  paper,  my  first  studies  in  the 
field  of  this  book.  To  Prof.  A.  C.  McLaughlin  I  owe  not  only 
specific  encouragement  for  this  study  and  valuable  suggestions 
on  the  manuscript,  but  that  incalculable  stimulus  that  flows 
from  an  inspiring  teacher  who  supplies,  not  mere  information, 
but  insight,  points  of  view,  and  ways  of  approach.  To  my 
teacher  and  friend,  Prof.  William  E.  Dodd,  I  am  obligated  for 
valuable  help  in  the  days  of  my  apprenticeship  and  later.  I 
am  sincerely  grateful  also  for  the  scholarly  assistance  of  Prof. 
Herman  V.  Ames,  and  for  the  benefit  obtained  from  the  Har- 
rison Research  Fellowship  at  the  University  of  Pennsylvania; 
for  this  fellowship  enabled  me  to  spend  a  year  in  concentrated 
work  upon  this  book. 

The  governmental  officers  to  whom  I  have  applied  for  the 
use  of  archival  collections  and  public  records  have  given  a 
helpful  cooperation  for  which  I  am  most  grateful.  Miss  Helen 
Nicolay  kindly  extended  the  privilege  of  using  the  manuscript 
diary  of  Edward  Bates.  Prof.  E.  P.  Tanner's  illuminating 
comments  have  been  of  the  greatest  assistance;  and  to  Prof. 
Charles  C.  Tansill,  who  patiently  read  and  ably  criticized 
the  whole  manuscript,  a  special  debt  is  due.  Valuable  aid  and 
counsel  was  given  by  Prof.  A.  0.  Craven.    For  corrections  and 


PREFACE  xi 

suggestions  on  portions  of  the  manuscript  I  am  indebted  to 
Dean  Albert  J.  Harno  and  Profs.  Laurence  M.  Larson,  T,  C. 
Pease,  C.  A.  Berdahl  and  W.  S.  Robertson.  In  the  final 
revision  for  publication  I  have  been  greatly  assisted  by  the 
comments  of  Prof.  Charles  M.  Andrews.  Dr.  H.  J.  Eckenrode 
supplied  many  helpful  suggestions  on  the  chapter  dealing  with 
the  partition  of  Virginia.  The  accuracy  of  the  book  has  been 
enhanced  by  the  generous  assistance  of  these  friends,  but  for 
such  errors  as  may  remain  I  must  assume  full  responsibility. 
My  debt  to  librarians  cannot  be  fully  stated;  but  I  wish  par- 
ticularly to  thank  Mr.  Herbert  Putnam,  Mr.  John  C.  Fitz- 
patrick,  Mr.  Demarchus  C.  Brown,  Dr.  H.  L.  Mcllwaine,  Mr. 
Clifford  R.  Myers,  Mr.  P.  L.  Windsor,  Mr.  Earl  G.  Swem, 
and  Mr.  Morgan  P.  Robinson.  I  appreciate  deeply  the  help 
and  encouragement  extended  by  Dr.  J.  F.  Jameson  and  Mr. 
W.  G.  Leland.  To  the  editors  of  the  American  Historical  Re- 
view and  the  Michigan  Law  Review  I  owe  the  privilege  of 
using  material  that  has  appeared  in  these  journals. 

I  can  hardly  put  in  words  the  appreciation  of  southern 
character  and  life  that  my  Virginia  associations  have  brought; 
far  less  can  I  express  the  deepening  of  this  appreciation  into 
endearment  through  my  southern  wife.  But  her  daily  assist- 
ance in  the  preparation  of  this  book,  in  much  more  than 
merely  mechanical  matters,  deserves  specific  recognition. 

J.  G.  R. 


CONTENTS 


PAGE 

Preface vii 


CHAPTER  I 

INTRODUCTION 

The  relation  of  constitutional  questions  to  social  motives 
and  forces.  II.  Growth  and  adaptation  of  the  American 
Constitution  to  meet  the  needs  of  a  developing  nation. 

III.  Conditions  and  influences  affecting  judicial  decisions. 

IV.  Constitutional  phases  of  the  question  of  secession:  Pos- 
sibihty  of  regarding  the  question  as  extra-constitutional  . 


CHAPTER  II 

THE  CONSTITUTION  AND  THE  WAR  POWERS 

The  Anglo-Saxon  disposition  to  hold  the  government  under 
the  law  even  in  time  of  war.  II.  War  powers  under  the 
Constitution  of  the  United  States.  III.  Duration  of  the 
war  powers.  IV.  War  powers  of  the  President.  V.  War 
powers  of  Congress.  VI.  Leniency  in  the  practical  appli- 
cation of  severe  war  measures 25 


CHAPTER  III 

THE  LEGAL  NATURE  OF  THE  CIVIL  WAR 

I.  Legal  determination  of  the  dates  for  the  beginning  and  end- 
ing of  the  war.  II.  Controversy  concerning  the  presiden- 
tial "dictatorship."  III.  The  insurrectionary  theory  of  the 
war.  IV.  The  concession  of  belligerent  rights  to  the  Con- 
federacy.   V.  The  dual  character  of  the  war 48 


xiv  CONTENTS 

CHAPTER  IV 

THE  LAW  OF  TREASON 

PASI 

I.  The  general  law  of  treason  at  the  outbreak  of  the  war. 
II.  Legislation  regarding  treason,  conspiracy,  and  rebellion 
during  the  war.  III.  Slight  enforcement  of  the  treason 
statutes.    IV.  Lenient  attitude  of  the  Lincoln  Government      74 

CHAPTER  V 

THE  TREATMENT  OF  CONFEDERATE  LEADERS 

I.  Policy  toward  enforcement  of  the  treason  statutes  at  the 
close  of  the  war.  II.  The  capitulations  of  surrender  in  their 
bearing  upon  the  Hability  of  paroled  prisoners  of  war  to 
trial  for  treason.  III.  Davis's  imprisonment  and  discussion 
as  to  the  method  of  his  trial.  IV.  The  Government's 
preparations  for  the  prosecution:  the  indictment.  V.  The 
Fourteenth  Amendment  cited  in  Davis's  defense:  Dana's 
doubts  concerning  the  prosecution.  VI.  Concluding  phases 
of  the  prosecution:   Dismissal  of  the  indictment  ...       96 

CHAPTER  VI 

THE  POWER  TO  SUSPEND  THE  HABEAS   CORPUS  PRmLEGE 

I.  Statement  of  the  constitutional  problem  regarding  the  sus- 
pension of  the  privilege  of  the  habeas  corpus  writ.  II. 
Principal  arguments  for  and  against  the  President's  power 
of  suspension.  III.  Ambiguous  action  of  Congress.  IV. 
Inconclusive  character  of  the  Civil  War  precedent.  V. 
Present  status   of   the   controversy 118 

CHAPTER  VII 

MILITARY   RULE   AND   ARBITRARY  ARRESTS 

I.  Military  rule  and  martial  law  in  general:  Infrequent  use  of 
martial  law  in  England.  II.  Sparing  application  of  mar- 
tial law  in  the  United  States.  III.  Arbitrary  arrests  dur- 
ing the  Civil  War.  IV.  Conflicts  between  military  and 
civil  authorities:  the  Merryman  case.  V.  Significance  of 
the  Habeas  Corpus  Act  of  1863 140 


CONTENTS  XV 


CHAPTER  VIII 

MARTIAL   LAW   AND    MILITARY  COMMISSIONS 

PAGE 

The  use  of  martial  law  during  the  Civil  War.  II.  Trial  of 
citizens  before  military  commissions.  III.  Non-inter- 
ference with  the  military  commission  in  the  Vallandigham 
case.  IV.  "Martial  rule"  in  regions  of  unobstructed  civil 
justice  declared  illegal  by  the  Supreme  Court  in  the 
Milligan  case:  Attitude  of  the  dissenting  judges.  V.  Gen- 
eral comments  concerning  s^lmma^y  process  as  employed 
during  the  Civil  War 169 


CHAPTER  IX 

THE   INDEMNITY   ACT   OF    1863 

I.  Problem  of  the  liability  of  Federal  officers  for  wrongs  com- 
mitted in  their  official  capacity  during  the  Civil  War.  II. 
Passage  of  the  Indemnity  Act  to  relieve  officers  of  such 
liability.  III.  Suits  against  Federal  officers:  State  resist- 
ance to  the  Indemnity  Act.  IV.  Legal  difficulties  presented 
in  the  courts  in  the  practical  application  of  the  act.  V. 
Constitutionality  of  the  measure  considered:  Decision  of 
the  Supreme  Court  holding  the  act  to  be  in  violation  of 
the  Seventh  Amendment 186 


CHAPTER  X 

THE  REGIME  OF  CONQUEST  IN  OCCUPIED  DISTRICTS  OF  THE  SOUTH 

I.  Military  occupation  in  general.  11.  Modification  of  the  gen- 
eral rules  of  military  occupation  to  suit  the  peculiar  con- 
ditions of  the  Civil  War.  III.  Inconsistent  treatment  of 
occupied  regions  as  parts  of  the  United  States  but  also  as 
enemy  territory.  IV.  Conditions  attending  Union  rule  in 
the  South:  supremacy  of  Federal  over  local  power;  main- 
tenance of  military  government;  confusion  of  authority. 
V.  Administration  of  justice  in  occupied  districts.  VI. 
Constitutional  basis  of  the  governments  of  occupation: 
Succession  of  governmental  changes  in  the  South  during 
and  after  the  Civil  War 215 


xvi  CONTENTS 


CHAPTER  XI 

LEGAL  AND  CONSTITUTIONAL  BEARINGS  OF  CONSCRIPTION 

PAGE 

American  tradition  and  American  law  regarding  conscription 
in  1861.  II.  Conscription  by  presidential  regulation  and 
through  State  authority  in  1S62.  III.  Conscription  Law  of 
1863.  IV.  Discretionary  power  of  the  President.  V.  Mili- 
tary custody  over  drafted  men.  VI.  Use  of  State  militia 
for  suppressing  draft  troubles.  VII.  The  conscientious  ob- 
jector. VIII.  Liability  of  aliens  under  the  draft.  IX. 
Constitutionality  of  the  Conscription  Acts 239 


CHAPTER  XII 

THE   POLICY    OP    CONFISCATION 

I.  The  Confiscation  Acts  of  1861  and  1862.  II.  Process  of  in- 
stituting and  conducting  confiscation  cases.  III.  Duration 
of  the  forfeiture:  Reversionary  rights  in  confiscated  prop- 
erty.   IV.  Extent  and  results  of  confiscation  .     .     .'    .     .     275 


CHAPTER  XIII 

THE  RIGHT  OF  CONFISCATION 

Position  of  the  Supreme  Court  regarding  the  belligerent  right 
of  confiscation.  II.  Views  of  authorities  on  international 
law.  III.  Opinions  of  American  jurists.  IV.  Special  case 
of  the  confiscation  of  debts.  V.  The  "rebel's"  standing  in 
court.    VI.  Constitutionality  of  the  Confiscation  x\cts  ,     .     293 

CHAPTER  XIV 

RESTORATION   OF   CAPTURED   AND    CONFISCATED   PROPERTY 

Virtual  confiscation  in  connection  with  the  direct  tax.  II. 
Captured  and  abandoned  property.  III.  Executive  policy 
concerning  confiscation  after  the  war.  IV.  Efiect  of 
pardon  upon  the  restoration  of  confiscated  property.  V. 
Restoration  of  captured  and  abandoned  property  .     .     .     316 


CONTENTS  xvii 

CHAPTER  XV 

STEPS  TOWARD  EMANCIPATION 

PAGE 

I.  The  belligerent  right  of  emancipation:  The  war  power  of 
Congress  over  slavery.  II.  How  the  war  forced  the  ques- 
tion of  emancipation  upon  the  Government:  Policy  with 
regard  to  military  emancipation  and  the  return  of  fugitive 
slaves.  III.  Emancipation  in  relation  to  confiscation.  IV. 
Liberation  of  slave-soldiers:  Other  emancipating  meas- 
ures of  Congress.  V.  Lincoln's  plan  of  gradual  abolition 
by  State  action  with  Federal  compensation 342 

CHAPTER  XVI 

EMANCIPATION  COMPLETED 

I.  Legal  basis  of  the  Emancipation  Proclamation.  II.  Effect 
and  validity  of  the  proclamation.  III.  Legal  confusion 
arising  where  Federal  laws  of  emancipation  encountered 
slave  codes  in  loyal  States.  IV.  Action  of  the  border  States 
concerning  slavery.  V.  The  anti-slavery  amendment: 
Controversy  concerning  such  use  of  the  "amending  power." 
VI.  Legality  of  the  process  by  which  the  Thirteenth 
Amendment  was  ratified.  VII.  Considerations  concerning 
the  lack  of  compensation  to  slaveholders 371 

CHAPTER  XVII 

STATE  AND   FEDERAL  RELATIONS   DLTIING   THE   CIVIL   WAR 

I.  Great  importance  of  State  action  during  the  war.  II.  The 
question  of  State  "neutrality."  III.  Military  problems  of 
the  State  and  nation.  IV.  Federal  relationships  of  the 
State  governors.  V.  Financial  questions.  VI.  Jurisdictional 
conflicts  engendered  by  action  of  State  courts  ....     405 

CHAPTER  XVIII 

THE  P.^RTITIOX  OF  \1RGINIA 

I.  Long-standing  differences  between  eastern  and  western  Vir- 
ginia. II.  Unionist  movement  in  the  western  counties: 
Reorganization  of  the  government  of  Virginia.    III.    The 


xviii  CONTENTS 

PlOB 

launching  of  the  "restored  government."  IV.  Steps  taken 
for  the  formation  of  the  new  State:  The  "Wheeling  ordi- 
nance" of  August  20,  1861.  V.  Action  of  the  Federal  Gov- 
ernment toward  the  new-State  movement:  The  West 
Virginia  bill  in  Congress.  VI.  Attitude  of  Lincoln  and  hio 
Cabinet  toward  the  West  Virginia  bill:  Admission  of  the 
new  State.  VII.  Later  career  of  the  "restored  govern- 
ment": Attempts  to  obtain  representation  of  "Virginia"  in 
the  Congress  at  Washington.  VIII.  Attitude  of  Virginia 
and  of  the  Supreme  Court  in  the  controversy  between  Vir- 
ginia and  West  Virginia  concerning  certain  disputed  coun- 
ties. IX.  General  considerations  concerning  the  process 
by  which  the  new  commonwealth  was  created  ....     433 


CHAPTER  XIX 

THE  RELATION  OP  THE  GOVERNMENT  TO  THE  PRESS 

I.  Freedom  of  the  press  in  American  law.  II.  Lack  of  censor- 
ship during  the  Civil  War:  Military  control  of  telegraphic 
communication.  III.  Activities  of  newspapers  during  the 
war:  Continual  revelation  of  military  information.  IV. 
Military  measures  available  against  correspondents  and 
editors.  V.  The  "suppression"  of  newspapers.  VI.  Ex- 
clusion from  the  mails  and  other  civil  measures  of  control. 
VII.  The  arrest  of  editors.  VIII.  General  comment  on 
problems  of  press  control  during  the  war 477 

CHAPTER  XX 

SUMMARY  AND  CONCLUSION 

I.  American  and  English  attitude  toward  the  rule  of  law.  IL 
Lincoln's  interpretation  and  application  of  the  war  power. 
III.  Lack  of  legal  precision  during  the  Civil  War:  Con- 
flicting theories  as  to  its  nature.  IV.  Absence  of  effective 
checks  by  Congress  and  the  Supreme  Court.  V.  Mitigating 
factors:  General  appraisal  of  Lincoln's  government.  VI. 
Bearing  of  Civil  War  issues  upon  later  constitutional  his- 
tory: Parallel  problems  under  Wilson 511 

Bibliography 531 

Index 549 


CONSTITUTIONAL  PROBLEMS 
UNDER  LINCOLN 


CONSTITUTIONAL  PROBLEMS 
UNDER  LINCOLN 

CHAPTER  I 

INTRODUCTION 

I.  The    relation    of    constitutional    questions    to    social 

motives  and  forces 
II.   Growiih  and  adaptation  of  the  American  Constitution 
to  meet  the  needs  of  a  developing  nation 

III.  Conditions  and  influences  affecting  judicial  decisions 

IV.  Constitutional   phases   of  the   question   of  secession: 

Possibility  of  regarding  the  question  as  extra-consti- 
tutional 


The  purpose  of  this  volume  is  to  examine  those 
measures  of  the  Lincoln  Government  which  involved 
significant  constitutional  issues.  The  American  Civil 
War  began  with  an  elaborate  constitutional  discussion 
over  the  right  of  a  State  to  secede  from  the  Union,  and 
as  the  great  struggle  progressed,  a  notable  succession  of 
legal  problems  demanded  attention.  Never  before  or 
since  has  the  Government  of  the  United  States  been 
subjected  to  such  a  severe  test.  While  Lincoln  spoke 
of  the  cause  for  which  he  contended  as  no  less  than  the 
maintenance  of  democracy  in  the  world,  such  a  man  as 
Wendell  Phillips  denounced  Lincoln's  government  as  a 
"fearful  peril  to  democratic  institutions"  and  character- 
ized the  President  as  an  "unlimited  despot."  ^     In  the 

*  As  quoted  by  John  Hay,  Lincoln  said :    "I  consider  the  central  idea 
pervading  this  struggle  is  the  necessity  ...  of   proving  that  popular 

1 


2      THE  CONSTITUTION  UNDER  LINCOLN 

doubtful  struggle  to  preserve  the  L^nion,  the  war  Con- 
gress and  the  war  Cabinet  had  many  a  hard  choice  to 
make  when  measures  out  of  harmony  with  American 
notions  of  civil  liberty  seemed  the  only  alternative  to 
defeat  and  disintegration.  "Must  a  government,  of 
necessity,  be  too  strong  for  the  liberties  of  its  own  people, 
or  too  weak  to  maintain  its  own  existence?"  -  was  the 
question  Lincoln  propounded  when  making  one  of  his 
difficult  decisions,  and  this  question  embodied  a  real 
dilemma  which  his  government  continually  confronted. 
To  study  in  some  detail,  both  historically  and  legally, 
the  manner  in  which  these  constitutional  problems  of 
the  Civil  War  presented  themselves,  to  note  the  measures 
taken  in  solving  them,  and  to  offer  such  an  appraisal  of 
these  measures  as  historical  research  may  justify,  is  our 
task.  In  approaching  this  task,  some  introductory  com- 
ment upon  constitutional  interpretation  may  be  of  profit. 
Whether  any  great  question  is  primarily  "constitu- 
tional" is  doubtful.  Laws  and  constitutions  have  im- 
portance not  in  themselves,  but  because  of  the  social 
purposes  which  they  embody.  The  question  of  nullifica- 
tion, for  instance,  was  first  of  all  social  and  economic; 
only  in  a  secondary  sense  was  it  constitutional.  In  South 
Carolina  there  were  certain  conditions  of  society  which 

government  is  not  an  absurdity."  {Diary  and  Letters  of  John  Hay,  I, 
31.)  On  the  eve  of  the  Civil  War  W.  H.  Russell  wrote  to  John 
Bigelow:  "Every  friend  of  despotism  rejoices  at  your  misfortune;  .  .  . 
it  is  assuredly  a  grave  and  serious  obstacle  to  the  march  of  constitu- 
tional liberty."  (Russell  to  Bigelow,  London,  Feb.  4,  1861 :  Bigelow, 
Retrospections  of  an  Active  Life,  I,  346.)  For  Phillips'  views  see  his 
speeches;  also,  Nicolay  and  Hay,  Abraham  Lincoln:  A  History,  IX 
37,  and  J.  F.  Rhodes,  History  of  the  United  States  from  the  Compro- 
mise of  1850  to  the  Final  Restoration  of  Home  Rule  at  the  South  in 
1S77,  III,  558.  Joel  Parker  of  the  Harvard  Law  School  referred  to 
Lincoln  as  a  government  in  himself,  "an  absolute,  .  .  .  uncontrollable 
government;  a  perfect  military  despotism."     {Ibid.,  IV,  169.) 

'  Nicolay  and  Hay,  Complete  Works  of  Abraham  Lincoln  (Biographi- 
cal Edition),  II,  58. 


INTRODUCTION  3 

the  political  leaders  of  the  State  deemed  important;  and 
the  State-rights  view,  with  the  nullification  theory  as 
a  corollary,  was  urged  not  for  its  own  sake,  but  as  an 
essential  means  of  defending  and  preserving  these  con- 
ditions. The  motives  that  produced  the  nullification 
principle,  the  real  springs  of  action,  were  social  and  eco- 
nomic; the  arguments  were  constitutional.  Economic 
factors  connected  with  secession  cause  scholars  to  regard 
it  as  more  than  a  movement  for  constitutional  rights.^ 
For  the  Constitution  itself  there  is  the  "economic  inter- 
pretation," ^  and  for  Jeffersonian  principles  an  economic 
basis  has  been  argued.^  The  desire  to  protect  prop- 
erty interests,  as  a  stabihzing  social  force,  may  in  large 
part  account  for  the  constitutional  views  of  Hamilton  and 
his  followers,  and  even  of  Washington  himself;  but  if 
the  constitutional  opinions  of  these  men  be  studied  for 
their  own  sake,  these  underlying  motives  might  well 

'  The  theme  that  the  South  was  the  great  producing  section  while 
the  North  was  the  wealth-accumulating  section  was  eloquently  though 
rather  unscientifically  developed  by  T.  P.  Kettell  in  Southern  Wealth 
and  Northern  Profits,  published  on  the  eve  of  the  Civil  War.  He  set 
forth  elaborate  figures  to  show  how  the  North  kept  the  South  in  com- 
parative poverty  and  economic  dependence  through  its  control  of 
manufacturing,  shipping,  banking,  and  international  trade.  There  are 
many  articles  along  the  same  line  in  the  pages  of  DeBow's  Review  for 
the  fifties. 

*"The  members  of  the  [constitutional]  Convention  were,  with 
a  few  exceptions,  .  .  .  personally  interested  in  .  .  .  the  establishment  of 
the  new  system.  The  Constitution  was  essentially  an  economic  doc- 
ument. .  .  .  [It]  was  ratified  by  a  vote  of  probably  not  more  than  one- 
sixth  of  the  adult  males.  .  .  .  The  leaders  who  supported  the  Consti- 
tution in  the  ratifying  conventions  represented  the  same  economic 
groups  as  the  members  of  the  Philadelphia  convention.  ...  In  the 
ratification,  it  became  manifest  that  the  line  of  cleavage  for  and 
against  the  Constitution  was  between  substantial  personalty  interests 
.  .  .  and  the  small  farming  and  debtor  interests.  .  .  .  The  Constitution 
.  .  .  was  the  work  of  a  consolidated  group  whose  interests  knew  no 
State  boundaries  and  were  truly  national  in  their  scope."  (Charles  A. 
Beard,  An  Economic  Interpretation  of  the  Constitution  of  the  United 
States,  324-325.) 

'Charles  A.  Beard,  Economic  Origins  of  Jeffersoman  Democracy. 


4       THE  CONSTITUTION  UNDER  LINCOLN 

escape  notice.  What  Hamilton  said  about  implied  pow- 
ers should  always  be  read  in  the  light  of  the  fact  that 
Hamilton  wanted  a  national  bank,  and  that,  in  general, 
he  wanted  a  strong  government  for  the  stabihzation  of 
the  particular  economic  system  to  which  he  was  devoted. 
Not  always  do  the  words  of  a  speech  reveal  the  speak- 
er's motive.  True  historical  insight  must  penetrate 
through  the  statements,  writings,  and  arguments  of  po- 
litical leaders  to  the  broad  human  purposes  which  they 
were  seeking  to  accomplish.^  Viewed  in  this  light,  con- 
stitutional history  becomes  a  part,  and  an  important 
part,  of  social  history. 

A  recent  example  showing  how  social  motives  control 
constitutional  interpretation  appears  in  connection  with 
the  tendency  toward  "rebuilding  the  nation  on  interstate 
commerce."  As  a  contemporary  writer  has  said,  with 
some  exaggeration,  "Once  ...  we  had  need  of  a  Con- 
stitution with  many  sections  .  .  .  and  clauses:  .  .  .  now 
one  is  sufficient  ,  .  .  the  power  to  regulate  interstate 
commerce."  "^  The  suppression  of  rebates  and  discrimi- 
nating charges  by  railroads,  the  inspection  of  foodstuffs, 
the  restriction  of  vice,  the  prevention  of  accidents — all 
these  great  social  purposes  have,  so  to  speak,  surged 
against  the  constitutional  barriers  until  they  have  broken 
through;  and  the  interstate  commerce  clause  is  the 
breach  through  which  they  have  passed. 

This  social  utilization  of  the  Constitution,  so  familiar 
in  our  own  time,  is  not  a  new  thing;  and  in  the  treat- 
ment of  former  periods  of  our  history  it  is  well  to  seek 
out  the  social  motives  constituting  the  reality  of  which 
constitutional  arguments  are  but  the  reflection.     Only 

•The  development  of  political  theories  to  meet  political  needs  runs 
as  a  central  theme  through  the  pages  of  C.  L.  Becker,  The  Declaration 
of  Independence. 

^Shaiier  Mathews,  The  Making  of  Tomorrow,  180. 


INTRODUCTION  5 

so  may  we  preserve  the  important  study  of  constitu- 
tional history,  and  yet  retain  a  due  sense  of  proportion 
toward  those  influences  of  social  development  which  are 
the  great  factors  of  human  progress. 


II 

It  will  profit  the  student  of  history  and  politics  to 
broaden  his  view  and  definition  of  the  Constitution.  As 
Woodrow  Wilson  said,  the  Constitution  "cannot  be 
regarded  as  a  legal  document."  It  must  be  "a  vehicle 
of  life."  ^  Wholly  apart  from  the  matter  of  amendment, 
the  Constitution  is  more  than  the  instrument  of  1787. 
Just  as  the  word  "constitution"  in  England  denotes  the 
whole  body  of  law  covering  fundamentals  of  government 
which  successive  generations  of  Englishmen  have  built 
up,  so  in  America  the  Constitution  is  a  matter  of  growth, 
development,  and  interpretation.  Constitutional  history- 
is  not  the  study  of  a  document,  but  rather  of  a  social 
process — the  process  by  which  a  community  re-expresses 
from  time  to  time  its  will  concerning  its  government, 
refitting,  reinterpreting  and  expanding  its  fundamental 
law  so  as  to  keep  abreast  of  new  issues.  In  this  process 
the  Constitution  is  gradually  being  molded  to  fit  the 
nation  as  a  garment  is  shaped  to  fit  the  wearer.  It  is 
the  nation  wearing  the  Constitution,  so  to  speak,  and 
breathing  and  acting  within  it,  that  we  should  have  in 
view;  and  it  is  only  because  the  American  Constitution 
is  fortunately  not  a  strait-jacket  that  the  growing  na- 
tion has  been  able  substantially  to  preserve  it.^ 

•Woodrow  Wilson,  Constitutional  Government  in  the  United  States, 
192. 

•"The  effort  to  continue  uninterruptedly  in  accord  with  a  federal 
Constitution  .  .  .  made  at  a  time  .  .  .  before  the  railroad,  before  the 
telegraph,   before  the   thousand  and   one   changes  that  have   broken 


6       THE  CONSTITUTION  UNDER  LINCOLN 

One  of  the  Civil  War  writers,  Whiting,  has  given  us 
an  excellent  statement  of  the  adaptability  of  our  Con- 
stitution. The  narrow  constructionists,  he  says,  "have 
supposed  it  incapable  of  adaptation  to  our  changing 
conditions,  as  if  it  were  a  form  of  clay,  which  the  slight- 
est jar  would  shatter;  or  an  iron  chain  girdling  a  living 
tree  which  could  have  no  further  growth  unless  by 
bursting  its  rigid  ligature.  But  sounder  judges  believe 
that  it  more  resembles  the  tree  itself,  native  to  the  soil 
that  bore  it,  waxing  strong  in  sunshine  and  in  storm,  put- 
ting forth  branches,  leaves,  and  roots,  according  to  the 
laws  of  its  own  growth.  ,  .  .  Our  Constitution,  like  that 
of  England,  contains  all  that  is  required  to  adapt  itself 
to  the  present  and  future  changes  and  wants  of  a  free 
and  advancing  people."  ^" 

Where  a  constitution  has  this  quality  of  adaptability, 
it  becomes  especially  important  to  distinguish  between 
the  constitution  on  paper  and  the  constitution  in  re- 
ality. The  practical  application  of  any  document  pre- 
scribing a  fundamental  law  necessarily  proceeds  by  a  sort 
of  "trial  and  error"  system,  and  while  certain  clauses  of 
the  constitution  are  enormously  expanded  in  their  ap- 
plication, others  are  not  put  into  practical  effect.  A 
stranger  to  our  institutions  would,  in  fact,  obtain  only 
an  incorrect  and  artificial  conception  of  our  government 
if  he  confined  his  attention  to  the  Constitution  itself. 
He  would  have  to  be  told  that  certain  features  of  the 
Constitution  are  never  carried  out  in  practice,  while 
some  of  the  most  fundamental  powers  of  our  govern- 
ment are  exercised  without  any  definite  constitutional 

down  State  barriers  in  fact  and  welded  us  in  reality,  if  not  in  law, 
into  one  mass  in  many  .  .  .  particulars  .  .  .  has  .  .  .  demanded  nu- 
merous adjustments.  These  adjustments  have  been  made  easy  in  part 
by  the  general  terms  in  which  the  Constitution  ...  is  framed."  (A.  C. 
McLaughlin,  The  Courts,  the  Constitntiou,  and  Parlies,  283-284.) 
"  Whiting,  War  Powers  wider  the  Constitution,  9. 


INTRODUCTION  7 

authorization.  He  would  have  to  learn  that  the  Presi- 
dent is  not  in  reality  chosen  by  the  electoral  college; 
that  his  power  to  adjourn  Congress  has  never  been  ex- 
ercised ;  that  taxes  have  rarely  been  apportioned  accord- 
ing to  population,  and  that  certain  reconstruction  amend- 
ments have  not  been  enforced;  while  the  power  of  the 
courts  to  declare  laws  invalid,  together  with  many  other 
governmental  powers,  have  no  constitutional  basis  be- 
yond more  or  less  reasonable  inference.^^ 

One  of  the  frequent  faults  of  constitutional  discus- 
sion is  an  excessive  reliance  upon  the  political  wisdom 
of  a  by-gone  generation.  In  this  attitude  of  mind  one  is 
apt  to  attach  a  particular  sanctity  to  debates  contem- 
poraneous with  the  generation  which  estabhshed  the 
Constitution,  as  for  instance  the  discussion  that  took 
place  during  Jefferson's  administration  concerning  the 
suspension  of  the  habeas  corpus  privilege.  It  cannot  be 
denied  that  in  the  minds  of  judges,  closeness  to  the  time 
of  the  constitutional  convention  is  often  regarded  as  giv- 
ing special  weight  to  a  debate  or  an  opinion.  Nor  is  this 
tendency  pecuhar  to  conservatives,  for  the  spectacle  of 
radicab  appealing  to  "the  Fathers"  is  by  no  means  un- 
usual. It  is  an  old  trick  of  reformers  to  preach  a  return 
to  the  purer  and  higher  principles  of  the  past. 

But  is  this  backward  look  wholesome?  Is  there,  after 
all,  anything  "sacred"  about  the  Constitution?  Time 
has  amply  attested  the  wisdom  and  even  the  remarkable 

"A.  C.  McLaughiLii  cuds  ample  basis  in  the  "natural  right"  philos- 
ophy, in  the  pnnciple  of  separation  of  powers,  and  in  American  experi- 
ence prior  to  1787,  for  the  notion  that  the  courts  may  declare  a  law 
uneonstitutional.  E.  S.  Corwin  points  out  that  "judicial  review  was 
rested  by  the  framers  .  .  .  upon  certain  general  principles  which  in 
their  estimation  made  specific  provision  for  it  unnecessar].-."  (A.  C. 
McT^nghlin,  The  Courts,  the  Constitution,  and  Parties,  3-107;  E.  S. 
Garvin,  The  Doctrine  of  Judicial  Review,  17.)  See  also  C.  G.  Haines, 
The  American  Doctrine  of  Judicial  Supremacy,  and  C.  A.  Beard,  The 
Sttpreme  Court  and  the  Constitution. 


8       THE  CONSTITUTION  UNDER  LINCOLN 

power  of  divination  of  the  statesmen  of  1787,  but  that 
is  not  to  say  that  the  product  of  their  labor  has  a  right 
to  outlive  its  practical  usefulness.  To  accept  the  sanc- 
tity of  a  document  as  one  of  the  postulates  of  consti- 
tutional law  would  obviously  be  a  cramping  and  paralyz- 
ing procedure.  Our  best  tribute  to  the  makers  of  the 
Constitution  is  not  to  preserve  the  work  of  their  hands 
unchanged,  but  to  emulate  their  efforts  in  bringing  the 
best  thought  of  the  age  to  bear  upon  problems  of  politi- 
cal development. 

Ill 

There  are  special  precautions  to  be  observed  in  the 
use  of  court  decisions  for  historical  purposes.  One  must 
of  course  take  into  view  the  circumstances  and  condi- 
tions controlling  a  judge  in  the  formation  of  his  judi- 
cial conclusions.  His  opinion  is  conditioned  by  his  own 
capability,  his  prejudices,  the  influence  of  his  colleagues, 
the  traditions  and  body  of  principles  which  have  become 
a  part  of  him.^^     Constitutional  orthodoxy,  if  we  may 

"  Attorney  General  Bates'  inner  thoughts  on  the  Supreme  Court 
during  the  Civil  War  may  be  noted  here.  "Every  day  I  am  pained," 
he  wrote,  "at  witnessing  the  proceedings  in  this  highest  of  all  courts — 
both  the  substance  and  the  mode.  Heretofore  the  maxim  stare  decisis 
was  almost  ostentatiously  announced;  but  now,  it  looks  as  if  cases 
were  determined  on  grounds  of  policy  only,  and  upon  local  and 
transient  reasons."  After  referring  to  the  Califoniia  land  cases  and 
the  Fossatt  case,  he  continued:  "The  great  and  now  comic  error 
which  has  well  nigh  destroyed  the  dignity  ...  of  the  court  is  the 
extreme  looseness  ...  of  the  courts  below,  allowed  and  encouraged 
here  [so  that]  no  man — not  the  Chief  Justice — knows  what  is  the 
true  record  of  the  court  below."  Bates  also  commented  on  the  ex- 
treme age  of  the  justices,  remarking  that  five  members  were  "fail- 
ing": Taney,  Wayne,  Catron,  Grier,  and  Nelson.  At  that  time 
retiring  justices  of  the  Supreme  Court  received  no  pension.  (MS. 
Diary  of  Edward  Bates.  April  10,  11,  1864.)  After  Chief  Justice  Taney's 
death  Justice  R.  C.  Grier  wrote  to  Stanton  as  follows:  "I  think  the 
President  owes  it  to  you  that  you  should  be  suffered  to  retire  in 
this  honorable  position."     (Grier  to  Stanton,  Oct.  13,  186-1:     Stanton 


INTRODUCTION  9 

use  the  expression,  is  always  of  great  force  in  shaping 
judicial  views.  The  distinction  between  orthodoxy  and 
heresy  in  matters  of  constitutional  ^law  is  of  such  im- 
portance that  it  is  not  easy  for  a  judge  to  escape  the  or- 
thodox opinion.  The  liberal  interpretation  regarding 
"implied  powers,"  for  instance,  is  orthodox,  while  the 
strict-constructionist  view  that  would  treat  the  phrase 
"powers  not  delegated"  as  if  it  read  "powers  not  expressly 
delegated,"  is  heresy.  It  would  take  a  most  unusual 
mental  effort  for  a  judge  in  our  own  time  to  accept  the 
Jeffersonian  point  of  view  on  this  question. 

This  element  of  orthodoxy  in  constitutional  interpreta- 
tion is  given  added  force  by  the  ingrained  judicial  habit 
of  citing  precedent. ^^  Decisions  of  former  courts,  though 
never  conceded  to  be  unalterable,  are  usually  welcome; 
and  if  a  former  decision  in  an  analogous  case  can  be 
found,  the  court  will  often  cease  further  inquiry. 

A  recent  legal  writer  speaks  of  "the  old  bogey  man 
standing  astride  the  road  to  .  .  .  progress  in  the  law  of 
the  land  .  .  .  that  is,  the  custom  of  the  courts  ex- 
pressed in  the  old  phrase  stare  decisis  et  non  quieta 
movere — stand  by  precedents  and  do  not  disturb  points 
settled  by  adjudications."  "This,"  he  says,  "is  to  allow 
the  dead  hand  of  the  primitive  past  to  guide  the  progres- 
sive present,"  and  he  adds  that  it  is  mere  custom,  grow- 

Papers  [MSS.,  Library  of  Congress],  No.  55720.)  In  December,  1861, 
Congress  considered  a  radical  reorganization  of  the  Supreme  Court. 
Forfeiture  of  respect  for  the  court  seemed  to  be  implied  in  the  whole 
debate. 

""The  law  is  progressive  .  .  .  ,  adapting  itself  to  new  relations  .  .  . 
which  are  constantly  springing  up  in  the  progress  of  society.  But  this 
progress  must  be  by  analogy  to  what  is  already  settled."  (Greene, 
C.  J.,  in  1  R.  I.  356.)  "It  was  admitted  .  .  .  that  the  application  .  .  . 
is  without  precedent.  .  .  .  The  fact  that  no  such  application  was 
ever  before  made  in  any  case  indicates  the  general  judgment  of  the 
profession  that  no  such  application  should  be  entertained."  (Missis- 
sippi vs.  Johnson,  4  Wall.  475.  This  was  an  apphcation  to  enjoin  Presi- 
dent Johnson  against  enforcing  the  Reconstruction  Acts.) 


10     THE  CONSTITUTION  UNDER  LINCOLN 

ing  out  of  the  fact  that  judges  are  human,  tending  to 
follow  beaten  paths  and  to  take  the  line  of  least  resist- 
ance.^^ 

Of  course  it  is  also  true  that  the  courts  are  constantly 
developing  the  law  along  new  lines,  but  it  is  much 
easier  for  a  given  doctrine  to  succeed  if  the  precedents 
are  with  it  than  if  they  are  against  it.  Nor  should  we 
deny  that  this  conservation  of  existing  judicial  doctrine 
has  its  good  side. 

Another  important  factor  that  must  be  borne  in  mind 
in  seeking  to  evaluate  judicial  decisions  is  the  unwilling- 
ness of  a  court  to  pass  judgment  upon  a  pohtical  ques- 
tion. Sometimes  the  line  of  distinction  between  politi- 
cal and  justiciable  questions  may  be  difficult  to  draw; 
but  when  a  given  subject  is  understood  to  be  political, 
the  court  will  withhold  judgment. 

On  this  subject  Justice  Nelson,  announcing  the  Su- 
preme Court's  decision  in  Georgia  vs.  Stanton,  said: 

The  judicial  power  is  vested  in  one  supreme  court,  and  in 
such  inferior  courts  as  Congress  may  ordain  and  establish; 
the  political  power  of  the  government  in  the  other  two  depart- 
ments. The  distinction  between  judicial  and  political  pxDwer 
is  so  generally  acknowledged  in  the  jurisprudence  both  of 
England  and  of  this  country,  that  we  need  do  no  more  than 
refer  to  some  of  the  authorities  on  the  subject.  They  are  all 
in  one  direction.  .  .  .  [Quoting  from  Justice  Thompson  in 
Cherokee  Nation  vs.  Georgia]  "I  certainly  do  not  claim,  as 
belonging  to  the  judiciary,  the  exercise  of  political  power. 
That  belongs  to  another  branch  of  the  government.  ...  It 
is  only  where  the  rights  of  persons  or  property  are  involved, 
and  when  such  rights  can  be  presented  under  some  judicial 
form  of  proceedings,  that  courts  of  justice  can  interpose 
relief."  " 

"James  M.  Kerr,  "Uniform  State  Laws  and  the  Rule  of  Stare  De- 
cisis," Am.  Law  Rev.,  LVI,  497. 
"6  Wall.  50,  71,  75.    (See  also  Luther  vs.  Borden,  7  How.  1.) 


INTRODUCTION  11 

This,  it  should  be  remembered,  is  a  real  limitation 
upon  the  judicial  department.  Where  a  pohcy  of  gov- 
ernment has  been  carried  through  and  completed  by- 
Congress  and  the  executive,  so  long  as  the  question  in- 
volved is  primarily  political,  the  court  has  no  choice  but 
to  accept  it  as  an  accomplished  fact.  The  judicial  de- 
partment may  assume  the  adjustment  of  details  involv- 
ing personal  or  property  rights,  but  as  to  the  main  policy, 
the  judges  are  necessarily  silent  and  acquiescent.  In 
a  constitutional  study  of  great  periods  of  stress  and 
strain,  such  as  the  Civil  War,  there  are  many  topics,  as 
for  instance  the  creation  of  West  Virginia,  concerning 
which  the  Supreme  Court  would  attempt  no  independent 
decision. 

It  is  also  worth  remembering  that  the  "war  mind" 
affects  even  judicial  decisions.  The  historian  who  has 
read  many  of  the  judicial  utterances  of  the  Civil  War 
period  cannot  fail  to  be  struck  by  this  fact.  Judges  are 
human,  and  the  heat  of  war  inevitably  affects  their 
thinking.  When,  for  instance,  a  bitter  partisan  warfare 
was  being  waged  in  Indiana  and  the  anti-war  Democrats 
were  seeking  to  force  upon  Governor  Morton  a  special 
session  of  the  legislature  so  that  they  might  thwart  his 
measures,  the  Supreme  Court  of  the  State  was  used  as 
the  tool  of  these  scheming  politicians.^*^ 

The  decision  in  Kneedler  vs.  Lane,  declaring  the  con- 
scription law  unconstitutional,  when  examined  with  ref- 
erence to  the  circumstances  attending  its  issuance,  ap- 
pears to  be  merely  an  incident  of  a  bitter  partisan  war- 
fare. The  Democratic  party  of  Pennsylvania  at  this 
time  was  bitterly  opposed  to  the  Lincoln  administration, 
and  the  Democratic  judges  denounced  the  law,  while  the 

"W.  D.  Foulke,  Life  of  Oliver  P.  Morton,  I,  Ch.  xxii.  See  also 
W.  H.  H.  Terrell,  Report  of  the  Adjutant  General  of  Indiana,  I,  289 
et  seq.,  for  the  effect  of  war  prejudices  upon  court  decisions. 


12    THE  CONSTITUTION  UNDER  LINCOLN 

administration  judges  upheld  it.  Judge  Woodward's 
adverse  decision  was  so  popular  with  his  party  that  they 
nominated  him  for  governor;  but  the  ballots  of  pro- 
Lincoln  men  defeated  him,  and  finally,  after  this 
Union  triumph,  the  newly  chosen  Chief  Justice,  Agnew, 
brought  about  a  reversal  of  the  Court's  former  position, 
which  he  referred  to  as  having  been  "made  in  a  one- 
sided hearing  ...  in  a  preliminary  way,  during  a  time 
of  high  excitement,  when  partisan  rage  was  furiously 
assailing  the  law."  ^"^ 

In  districts  where,  during  the  Civil  War,  ill  will  against 
the  Lincoln  administration  was  keen,  such  disaffection 
frequently  found  expression  in  court  decisions  which 
sought  to  obstruct  essential  processes  of  conducting  the 
war,  as  for  instance,  decisions  seeking  to  release  by 
habeas  corpus  writ  in  a  State  court,  men  who  had  been 
drafted  into  the  United  States  army.  Though  the  high 
ideal  of  an  impartial  judiciary  is  one  that  has  been  closely 
approximated  in  this  country,  yet  the  historian  cannot 
fail  to  note  occasional  lapses  into  partisanship,  even  on 
the  part  of  our  judges. 


IV 

In  surveying  the  legal  aspects  of  the  Civil  War,  one 
of  the  first  points  to  claim  attention  is  the  elaborate  dis- 
cussion concerning  the  constitutional  merits  of  seces- 
sion. It  was  not  as  a  constitutional  problem,  however, 
that  this  question  was  settled,  but  rather  as  a  practical 
political  issue  of  the  highest  importance.  As  the  pres- 
ent study  is  primarily  devoted  to  constitutional  prob- 

*' Nicolay  and  Hay,  Abraham  Lincoln:  A  History,  VII,  375;  45  Pa. 
310.  The  New  York  Tribune  referred  to  Woodward's  decision  as  a 
"partisan  harangue."  (New  York  semi-weekly  Tribune,  Nov.  13, 
1863,  p.  4.) 


INTRODUCTION  13 

lems  which  the  prosecution  of  the  war  engendered,  a 
strict  definition  of  our  field  of  inquiry  might  seem  to  ex- 
clude secession,  which,  from  the  writer's  viewpoint,  is 
an  extra-constitutional  matter.  In  view  of  the  impor- 
tance of  the  issue,  however,  and  the  fact  that  the  Su- 
preme Court  made  some  notable  pronouncements  re- 
garding the  constitutionality  of  secession,  some  com- 
ment on  the  subject  may  be  appropriate. 

The  proposition  that  secession  might  be  grounded  on 
fundamental  principles  as  a  basic  popular  right,  received 
less  attention  than  it  deserved,  while  voluminous  ar- 
guments were  poured  forth  to  show  that  secession  was  a 
lawful  procedure  within  the  Constitution.  And  in  read- 
ing the  able  arguments  of  such  men  as  Stephens  and 
Davis  one  is  impressed  with  the  thought  that  their  state- 
ment of  the  case  for  secession  as  a  constitutional  right 
was  so  strong  that  (for  their  purpose)  the  other  grounds 
of  justification,  while  not  ignored,  could  be  permitted  to 
remain  in  the  background. 

The  States,  as  these  Southerners  contended,  did  not 
part  with  their  sovereignty  when  they  voluntarily  en- 
tered the  Union.  Sovereignty  is  not  a  quality  pertain- 
ing to  government — that  is  the  old  feudal,  monarchical 
view — in  a  democracy  it  is  a  quality  inherent  in  the 
people.  So  State  sovereignty  does  not  mean  sovereignty 
of  State  governments,  but  rather  of  the  people  of  the 
States.  Sovereignty  cannot  be  surrendered  by  mere  im- 
plication. A  grant  of  any  sort  to  be  legally  valid  must 
be  in  express  terms,  and  this  is  especially  true  in  the 
case  of  a  grant  covering  such  an  important  matter  as 
sovereignty. 

The  Constitution,  according  to  this  view,  was  made  by 
the  States.  The  phrase  "We  the  people  of  the  United 
States"  means  the  people  of  the  States,  for  the  "United 
States"  is  not  a  distinct  people,  but  a  union  of  several 


14    THE  CONSTITUTION  UNDER  LINCOLN 

peoples.  The  "supreme  law  clause"  of  the  Constitution 
is  no  infringement  upon  State  rights.  There  is  a  distinc- 
tion between  "supreme  law"  and  "paramount  authority." 
Supreme  law  is  exercised  by  the  government,  but  para- 
mount authority  resides  with  the  people.  To  supreme 
law  we  owe  obedience,  but  to  paramount  authority  we 
owe  something  higher,  namely,  allegiance.  The  exer- 
cise of  supreme  power  is  by  delegation  from  sovereign 
authority,  and  in  the  case  of  the  powers  of  the  United 
States  Government  they  are  supreme  only  so  long  as  the 
authority  delegating  them  continues  the  trust.  The  "su- 
preme law  clause,"  it  was  urged,  did  not  make  the  United 
States  Government  sovereign  over  the  States.  It  was 
not  a  proposal  of  the  nationahzing  element  within  the 
constitutional  convention,  but  a  substitute  measure  pre- 
sented by  the  State-rights  party  in  order  to  avoid  the 
nationalists'  proposal  for  a  negative  on  State  laws. 

The  people,  they  said,  may  bestow  supreme  power 
where  they  will,  and  what  they  bestow  they  may  recall. 
Thus  the  people  of  the  States,  possessing  the  right  to  be- 
stow supreme  governmental  power  as  they  should  see 
fit,  conferred  such  power  upon  a  general  government  as 
their  agent,  limiting,  to  that  extent,  their  State  govem- 
merits,  but  not  limiting  their  own  sovereignty.  Accord- 
ing to  this  interpretation,  the  "supreme  law  clause"  in- 
volved no  diminution,  much  less  a  final  surrender,  of 
that  sovereignty  which  resides  in  the  people  of  the 
States,  and  the  Articles  of  Confederation  were  as  truly, 
the  supreme  law  of  the  land  as  the  Constitution. 

The  ratification  of  the  Constitution,  according  to  the 
Southern  argument,  was  by  the  States;  and  the  instru- 
ment was  binding  only  upon  "the  States  so  ratifying  the 
same."  Nine  States  might  have  formed  the  new  union 
under  the  Constitution,  leaving  the  other  four  out ;  and  as 
a  matter  of  fact  eleven  did  "secede"  from  the  old  union 


INTRODUCTION  15 

under  the  Articles  of  Confederation,  and  established 
the  Constitution,  leaving  two  of  the  States,  North  Caro- 
lina and  Rhode  Island,  outside.  Thus  the  Constitution 
itself  originated  by  an  act  of  secession!  But  not  only 
was  the  Constitution  ratified  and  established  by  States; 
its  operation  depends  upon  the  States.  The  election  of 
Senators,  the  choice  of  President  and  Vice  President,  and 
other  important  features  of  the  Federal  machinery,  op- 
erate "by  States." 

Some  of  the  States,  so  the  argument  ran,  reserved  the 
right  of  withdrawal  in  their  acts  of  ratification.^®    Vir- 

**  Such  was  the  argument  of  A.  H.  Stephens  in  his  Constitutional 
View  of  the  War  between  the  States.  A  close  study  of  the  ratifying 
ordinance  reveals  a  distinction  between  the  phrase  "people  of  Vir- 
ginia" and  the  phrase  "people  of  the  United  States."  The  wording 
was  as  follows:  "We  the  Delegates  of  the  People  of  Virginia  .  .  .  now 
met  in  Convention.  .  .  .  Do  in  the  name  and  in  behalf  of  the  People 
of  Virginia  declare  .  .  .  that  the  powers  granted  under  the  Consti- 
tution being  derived  from  the  people  of  the  United  States  may  be 
resumed  by  them  whensoever  the  same  shall  be  perverted  to  their  in- 
jury or  oppression."  The  New  York  convention  declared  that  "all 
power  is  originally  vested  in  and  consequently  derived  from  the 
people,"  and  that  "the  powers  of  government  may  be  reassumed  by 
the  people,  whensoever  it  shall  become  necessary  to  their  happiness." 
The  Rhode  Island  act  of  ratification  (dated  May  29,  1790)  made  known 
"That  there  are  certain  natural  Rights  of  which  Men,  when  they 
form  a  social  compact,  cannot  deprive  or  divest  their  Posterity,  among 
which  are  the  Enjoyment  of  Life  and  Liberty,  with  the  means  of 
acquiring,  possessing  and  protecting  Property  and  pursuing  and  ob- 
taining Happiness  and  Safety.  That  all  power  is  naturally  vested  in 
and  consequently  derived  from  the  People;  that  Magistrates,  there- 
fore, are  ...  at  all  Times  amenable  to  them.  That  the  Powers  of 
Government  may  be  resumed  by  the  People,  whensoever  it  shall 
become  necessary  to  their  Happiness."  In  both  Rhode  Island  and 
New  York  numerous  reservations  were  inserted  covering,  in  general, 
such  points  as  were  later  embodied  in  the  "bill  of  rights" — i.e.,  the  first 
ten  amendments.  Massachusetts,  New  Hampshire,  and  Virginia  ac- 
companied their  acts  of  ratification  with  the  recommendation  of 
various  amendments.  South  Carolina  declared,  following  the  formula 
of  ratification,  that  the  right  to  prescribe  the  manner  of  holding  the 
elections  to  the  Federal  legislature  should  be  "forever  inseparably 
annexed  to  the  sovereignty  of  the  several  States."  Pennsylvania,  New 
Jersey,  Connecticut,  Georgia,  and  Maryland  made  no  reservations. 
The  North  Carolina  convention  on  August  1,  1788,  issued  a  "Declara- 


16    THE  CONSTITUTION  UNDER  LINCOLN 

ginia,  it  was  said,  stated  in  her  ratifying  ordinance  that 
the  powers  granted  under  the  Constitution,  "being  de- 
rived from  the  people  of  the  United  States  may  be  re- 
sumed by  them,  whensoever  the  same  shall  be  perverted 
to  their  injury  or  oppression."  New  York  and  Rhode 
Island  made  similar  "reservations"  and  the  other  States, 
in  accepting  such  ratification,  assented  to  the  principle 
that  the  right  of  withdrawal  was  retained.  Besides,  the 
Constitution  being  a  "compact"  between  the  States,  if 
any  of  the  confederated  parties  failed  to  live  up  to  the 
terms  of  the  compact,  the  other  confederates  were  re- 
lieved of  any  further  obligations.^^ 

On  the  Union  side,  the  binding  effect  of  the  Consti- 
tution upon  the  States,  and  the  impossibility  of  seces- 

tion  of  Rights"  as  a  suggestion  for  amending  the  Constitution,  "previ- 
ous to  .  .  .  Ratification  on  the  part  of  .  .  .  North  Carolina."  The 
actual  ratification  by  North  Carolina  on  December  21,  1789,  was 
without  reservation.  The  writer's  study  of  this  subject  has  led  him 
to  the  conclusion  that  none  of  the  commonwealths  formally  and 
explicitly  reserved  in  its  resolution  of  ratification  the  right  of  State 
withdrawal,  though  several  of  them  put  on  record  the  right  of  the 
people  of  the  United  States  to  resume  governmental  powers  granted 
in  the  Constitution.  There  still  remains,  however,  the  belief  of 
many  historical  scholars  that  the  majority  of  the  American  people 
assumed  at  the  time  of  ratification  that  State  withdrawal  was  possible 
if  the  Union  should  prove  unsatisfactory.  This  view  is  by  no  means 
confined  to  Southern  writers.  (MacDonald,  Jacksonian  Democracy 
[The  American  Nation:  A  History,  Vol.  15]  105  et  seq.;  Ratification 
of  the  Constitution  [MS.  in  Libr.  of  Cong.],  passim;  Documentary 
History  of  the  Constitution  [published  by  the  State  Department],  Vol. 
II.)  For  the  historical  background  in  the  discussion  of  State  rights 
one  should  read  the  article  on  "Sovereignty  in  the  American  Revolu- 
tion: An  Historical  Study,"  by  C.  H.  Van  Tyne,  in  the  Am.  Hist.  Rev., 
XU,  529-545. 

2"  These  arguments  supporting  secession  are  chiefly  to  be  found 
in  Alexander  H.  Stephens,  A  Constitutional  View  of  the  War  between 
the  States,  and  Jefferson  Davis,  Rise  and  Fall  of  the  Confederate 
States  of  America.  For  Davis'  works,  see  Jefferson  Dams,  Constitu- 
tionalist: His  Letters,  Papers  and  Speeches,  ed.  by  Dunbar  Rowland. 
Stephens'  replies  to  his  critics  are  to  be  found  in  A.  H.  Stephens,  The 
Reviewers  Reviewed:  A  Supplement  to  the  "War  between  the 
States."  Documents  on  both  sides  are  collected  in  Allen  Johnson, 
Readings  in  American  Constitutional  History,  1776-1876,  454-463. 


INTRODUCTION  17 

sion  as  a  right  within  the  Constitution,  were  vigorously 
argued.  Though  there  were  many  able  champions  of 
this  view,  the  arguments  most  worth  quoting  were,  per- 
haps, that  of  President  Lincoln  in  his  message  to  the  spe- 
cial session  of  Congress  on  the  fourth  of  July,  1861,  and 
Motley's  able  "Letter  to  the  London  Times,"  published 
in  1861. 

What  is  "sovereignty"  in  the  political  sense  of  the  term? 
[asked  President  Lincoln.]  Would  it  be  far  wrong  to  define  it 
"a  political  community  without  a  political  superior"?  Tested 
by  this,  no  one  of  our  States,  except  Texas,  ever  was  a  sov- 
ereignty. And  even  Texas  gave  up  the  character  on  coming 
into  the  Union.  .  .  .  The  States  have  their  status  in  the 
Union,  and  they  have  no  other  legal  status.  If  they  break 
from  this,  they  can  only  do  so  against  law  and  by  revolution. 
.  .  .  The  Union  is  older  than  any  of  the  States,  and,  in  fact, 
it  created  them  as  States.  .  .  .  Unquestionably  the  States  have 
the  powers  and  rights  reserved  to  them  in  and  by  the  Na- 
tional Constitution;  but  among  these  surely  are  not  included 
all  conceivable  powers,  however  mischievous  or  destructive, 
but,  at  most,  such  only  as  were  known  in  the  world  at  the  time 
as  governmental  powers ;  and  certainly  a  power  to  destroy  the 
government  itself  had  never  been  known  as  a  governmental 
.  .  .  power.  .  .  .  Whatever  concerns  the  whole  should  be  con- 
fided to  the  whole — to  the  General  Government;  while  what- 
ever concerns  only  the  State  should  be  left  exclusively  to  the 
State.  .  .  .  Whether  the  National  Constitution  in  defining 
boundaries  between  the  two  has  applied  the  principle  with 
exact  accuracy  is  not  to  be  questioned.  We  are  all  bound  by 
that  defining.  .  .  .  What  is  now  combated  is  the  position 
that  secession  is  consistent  with  the  Constitution — is  lawful 
and  peaceful.  .  .  .  The  principle  ...  is  one  of  disintegration, 
and  upon  which  no  government  can  possibly  endure.^" 

"Nicolay  and  Hay,  Complete  Works  of  Abraham  lAncoln  (Gettys- 
burg Edition),  VI,  315-318.  The  portions  quoted  above  give  but  a 
minor  part  of  Lincoln's  argument  concerning  the  legal  merits  of 
secession.     The  historical  argument  that  "the  Union  is  much  older 


18    THE  CONSTITUTION  UNDER  LINCOLN 

Writing  to  an  English  audience,  which  found  much  in 
the  Southern  position  to  awaken  sympathy  and  which 
applauded  the  aspirations  of  the  Confederacy  toward  in- 
dependence in  much  the  same  way  that  public  opinion 
in  the  World  War  period  applauded  the  efforts  of  vari- 
ous European  peoples  for  "self-determination,"  John 
Lothrop  Motley  set  forth  the  reasons  why  the  United 
States  Government  was  under  the  necessity  of  forcibly 
resisting  secession.  His  argument  against  the  constitu- 
tional validity  of  secession  is  one  of  the  ablest  statements 
of  the  Union  point  of  view.  Motley  stated  that  before 
1787  we  were  a  "league  of  petty  sovereignties"  and  that 
in  the  few  years  of  the  league's  existence  we  sank  into  a 
condition  of  impotence  so  that  life  and  property  were  in- 
secure, laws  could  not  be  enforced,  and  we  were  unable 
either  to  guarantee  the  fulfillment  of  our  part  of  the 
treaty  with  England  or  to  obtain  England's  fulfillment 
of  her  obligations.  But  the  sagacious  men  of  that  time, 
having  "had  enough  of  a  confederacy,"  made  a  truly  na- 
tional government,  one  that  its  opponents  called  a  "con- 
solidated" government.  As  the  chief  concern  of  the  men 
of  the  time  was  to  cure  the  defects  of  the  old  confeder- 
acy,   they    made    a    government    which    operated    not 


than  the  Constitution"  was  developed  in  his  first  inaugural;  and  the 
theme  that  the  Union  is  older  than  the  States  was  elaborated  in  a 
letter  to  A.  H.  Stephens  which  appears  in  Tracy,  Uncollected  Letters 
of  Abraham  Lincoln,  124-128.  Lincoln  also  argued  that  no  organic 
law  had  a  provision  for  its  own  termination;  that  the  Union  is  per- 
petual; and  that  "secession  is  the  essence  of  anarchy."  In  the  July 
message  to  Congress  he  further  contended  that  no  State  was  ever  a 
"State  out  of  the  Union";  that  large  national  sums  spent  for  Florida 
and  Texas  created  obligations  that  should  not  be  escaped;  that  se- 
cession takes  no  account  of  the  obligation  to  pay  the  national  debt; 
that  the  Confederate  Government  itself  faced  disintegration  if  un- 
limited secession  should  be  permitted;  and  that  for  all  tlie  States 
but  one  to  drive  that  one  out  would  be  aB  justifiable  as  secession. 
See  also  Lincoln  to  the  North  American  Review,  January  16,  1864,  in 
Nicolay  and  Hay,  Works,  IX,  284. 


INTRODUCTION  19 

through  the  States,  but  directly  upon  every  individual 
in  the  country,  exercising  supreme  powers,  while  the 
States  were  "prohibited  .  .  .  from  exercising  any  of  the 
great  functions  of  sovereignty."     He  continued:  ^^ 

The  right  of  revolution  is  indisputable.  .  .  .  There  can  be 
nothing  plainer  .  .  .  than  the  American  right  of  revolution. 
But  then  it  should  be  called  revolution.  "Secession,  as  a  revo- 
lutionary right,"  said  Daniel  Webster  .  .  .  "is  intelligible. 
As  a  right  to  be  proclaimed  in  the  midst  of  civil  commotions, 
and  asserted  at  the  head  of  armies,  I  can  understand  it.  But 
as  a  practical  right,  existing  under  the  Constitution,  ...  it 
seems  to  be  nothing  but  an  absurdity,  for  it  supposes  resistance 
to  Government  under  the  authority  of  Government  itself;  it 
supposes  dismemberment  without  violating  the  principles  of 
Union;  it  supposes  opposition  to  law  without  crime;  ...  it 
supposes  the  total  overthrow  of  Government  without  revolu- 
tion." 

Having  noted  the  important  clauses  of  the  Constitu- 
tion by  which  the  States  were  shorn  of  the  attributes  of 
sovereignty,  being  denied  the  power  to  coin  money,  main- 
tain armies,  make  compacts,  and  the  like,  Motley  pro- 
ceeded thus: 

Could  language  be  more  Imperial?  Could  the  claim  to  State 
"sovereignty"  be  more  completely  disposed  of  at  a  word? 
How  can  that  be  sovereign  .  .  .  which  has  voluntarily  ac- 
cepted a  supreme  law  from  something  which  it  acknowledges 
as  superior? 

The  Constitution  is  perpetual,  not  provisional  or  temporary. 
It  is  made  for  all  time — "for  ourselves  and  our  posterity."  It 
is  absolute  within  its  sphere.  "This  Constitution  [.  .  .]  shall 
be  the  supreme  law  of  the  land,  anything  in  the  Constitution 
or  laws  of  any  State  to  the  contrary  notwithstanding."     Of 

**"J.  L.  M.,"  in  London  Times,  May  23-24,  1861.  (The  text  of 
Motley's  letter  as  above  given  has  been  checked  by  comparison  with 
the  original  in  the  Times.) 


20    THE  CONSTITUTION  UNDER  LINCOLN 

what  value,  then,  is  a  law  of  a  State  declaring  its  connexion 
with  the  Union  dissolved?  The  Constitution  remains  su- 
preme, and  is  bound  to  assert  its  supremacy  till  overpowered 
by  force.  .  .  . 

But  it  is  sometimes  asked  why  the  Constitution  did  not 
make  a  special  provision  against  the  right  of  secession.  ...  It 
would  have  been  puerile  for  the  Constitution  to  say  formally 
to  each  State,  "Thou  shalt  not  secede."  .  .  .  This  Constitu- 
tion is  supreme,  whatever  laws  a  State  may  enact,  says  the  or- 
ganic law.  Was  it  necessary  to  add,  "and  no  State  shall  enact 
a  law  of  secession"?  To  add  to  a  great  statute  ...  a  phrase 
such  as  "and  be  it  further  enacted  that  the  said  law  shall  not 
be  violated,"  would  scarcely  seem  to  strengthen  the  statute. 

It  is  strange  that  Englishmen  should  find  difficulty  in  under- 
standing that  the  United  States  Government  is  a  nation 
among  the  nations  of  the  earth.  .  .  .  The  "United  States" 
happens  to  be  a  plural  title,  but  the  Commonwealth  thus  des- 
ignated is  a  unit,  "e  pluribus  unum." 

The  terms  of  the  treaty  between  England  and  Scotland 
were  perpetual,  and  so  is  the  Constitution  of  the  United  States. 
The  United  Empire  may  be  destroyed  by  revolution  and  war, 
and  so  may  the  United  States;  but  a  peaceful  and  legal  dis- 
memberment without  the  consent  of  the  majority  of  the  whole 
people  is  an  impossibility. 

That  great  law  [the  Constitution]  .  .  .  was  ratified  by  the 
people  of  all  the  land.  ...  It  was  promulgated  in  the  name 
of  the  people.  "We,  the  people  of  the  United  States  ...  do 
ordain  and  establish  this  Constitution."  It  was  ratified  by  the 
people — not  by  the  States  acting  through  their  Governments, 
.  .  .  but  by  the  people  electing  especial  delegates  within  each 
State;  and  ...  in  none  of  these  ratifying  Conventions  was 
any  reserve  made  of  a  State's  right  to  repeal  the  Union  or  to 
secede.^^ 

"See  note  18  of  this  chapter. 


INTRODUCTION  21 

And  thus,  when  the  ratifications  had  been  made,  a  new 
Commonwealth  took  its  place  among  the  nations  of  the  earth. 
The  effects  of  the  new  Constitution  were  almost  magical. 
Order  sprang  out  of  chaos.  Law  resumed  its  reign,  debts  were 
collected,  life  and  property  became  secure,  the  national  debt 
was  funded  and  .  .  .  paid.  ...  At  last  we  were  a  nation. 

Neither  the  opponents  nor  friends  of  the  new  Government  in 
the  first  generation  after  its  establishment  held  the  doctrine 
of  secession.  .  .  .  Each  party  continued  to  favor  or  to  oppose 
a  strict  construction  of  the  instrument;  but  the  doctrine  of 
nullification  and  secession  was  a  plant  of  later  growth.  It 
was  an  accepted  fact  that  the  United  States  was  not  a  con- 
federacy. 

Such,  in  brief  outline,  were  the  strongest  arguments 
on  both  sides  of  this  historic  debate.  To  arbitrate  the 
controversy  is  not  the  historian's  function,  but  it  is  es- 
sential that  both  points  of  view  be  appreciated.  It  is 
recognized  that  the  principle  of  State  sovereignty  perme- 
ated the  old  form  of  government  under  the  Articles  of 
Confederation.  The  wording  was:  "Each  State  retains 
its  sovereignty,  freedom,  and  independence."  The  Con- 
stitution is  usually  set  off  in  contrast  to  the  Articles  and 
regarded  as  the  product  of  the  nationalizing  party  which 
is  supposed  to  have  "triumphed"  in  the  convention,  as 
if  the  State-rights  party  had  accepted  defeat.  But  the 
outcome  of  the  convention  was  not  the  complete  "vic- 
tory" of  one  party  over  the  other  so  much  as  a  com- 
promise accepted  by  both  sides,  for  the  Constitution 
could  not  have  been  adopted  without  the  votes  of  the 
State-rights  element. 

It  should  not  be  forgotten  that  there  was  a  national 
"side"  to  the  purposes  of  the  State-rights  party.  Men  of 
this  party  were  ready  to  make  concessions  in  order  to 
provide  a  more  adequate  government;  but,  if  we  accept 


22     THE  CONSTITUTION  UNDER  LINCOLN 

their  own  interpretation  of  their  acts,  they  did  not  know- 
ingly yield  State  sovereignty.  Webster  and  Marshall 
argued  with  convincing  logic  that  the  people,  in  forming 
the  Constitution,  consciously  abandoned  their  sover- 
eignty as  State  communities  in  favor  of  an  all-inclusive 
national  sovereignty ;  but  is  it  not  possible  that  the  logic 
of  Webster  and  Marshall  was  better  than  their  history, 
and  that  they  may  have  been  reading  back  into  the 
thought  of  that  earlier  time  a  view  which  was  not  after 
all  the  prevaiHng  sentiment  of  "the  Fathers"?  It  is  an 
historic  fact  that  the  South  did  not  accept  the  Webster- 
Marshall  doctrine;  and  if  historical  continuity  be  made 
the  test,  it  could  be  urged  that  the  advocates  of  State 
rights  fully  believed  in  an  unbroken  continuity  which 
linked  their  views  with  those  of  the  architects  of  our 
government.  Honesty  and  sincerity  certainly  character- 
ized this  point  of  view,  and  shall  we  not  say  that  it  had 
a  certain  historical  validity?  At  least  we  should  under- 
stand it  if  we  are  to  make  a  study  of  the  war  of  seces- 
sion. 

Viewed  after  the  lapse  of  more  than  half  a  century,  the 
arguments  for  the  "constitutionality"  of  secession  hardly 
seem,  on  either  side,  to  go  to  the  core  of  the  subject.  The 
Southerners,  in  the  broader  sense,  did  not  strike  for 
State  secession  per  se;  they  struck  for  the  larger  object 
of  a  new  union  in  which  all  the  neighbors  would  be  har- 
monious and  congenial.  Furthermore,  instead  of  think- 
ing merely  of  the  constitutional  justification  for  their 
movement,  they  were  virtually  appealing  to  the  court  of 
world  opinion  on  the  basis  of  fundamental  rights;  for 
whatever  motives  would  justify  secession  would  also  jus- 
tify an  appeal  to  the  right  of  revolution.  The  people  of 
the  North,  on  the  other  hand,  gave  freely  of  life  and 
treasure  not  merely  because  they  believed  secession  un- 
constitutional, but  because  the  majority  of  them  were  de- 


INTRODUCTION  23 

voted  to  the  Union  and  believed  that  only  by  maintain- 
ing its  integrity  as  one  people  could  the  United  States 
realize  its  highest  destiny.  On  each  side  the  feeling  for 
or  against  the  desirability  of  secession  was  a  stronger  fac- 
tor than  the  attitude  regarding  its  constitutionality. 

Even  Lincoln's  arguments  on  this  subject  should  not 
be  regarded  as  mere  matters  of  legal  reasoning,  for  Lin- 
coln's constitutional  interpretation  rested  upon  motives; 
and  the  significant  fact  which  gave  force  to  his  leader- 
ship was  not  so  much  his  belief  in  the  unconstitutionality 
of  secession  as  it  was  his  fundamental  conviction  that  the 
Union  was  bound  up  with  the  welfare  of  the  country. 

The  fact  that  so  much  was  made  of  the  constitutional 
argument  may  be  attributed  in  part  to  the  law-abiding 
instincts  of  the  American  people.  The  South,  no  less 
than  the  North,  revered  the  Constitution,  and  to  both 
sides  it  seemed  a  shocking  thing  to  cast  aside  the 
restraints  of  the  time-honored  instrument;  while  in  a 
less  stable  country  the  thought  of  revolution  would  have 
been  readily  accepted  without  any  backward  look  of 
regret  at  the  shattered  fragments  of  the  fundamental 
law.  It  need  not  be  considered  a  reflection  upon  the 
earnestness  of  the  contemporary  arguments  if  the  his- 
torian of  the  present  should  treat  the  whole  subject  of 
secession  as  extra-constitutional. 

It  was  but  natural  that  the  effects  of  Union  triumph 
should  be  registered  in  our  constitutional  interpretation. 
The  orthodox  view  which  emerged  from  the  Civil  War 
was  stated  by  the  Supreme  Court  in  the  following 
words:  ^^ 

The  Union  of  the  States  never  was  a  purely  artificial  and 
arbitrary  relation.  It  began  among  the  Colonies,  .  .  .  was 
confirmed  and  strengthened  by  the  necessities  of  war,  and  re- 

"  Texas  vs.  White,  7  Wall.  724-726. 


24    THE  CONSTITUTION  UNDER  LINCOLN 

ceived  definite  form  .  .  .  from  the  Articles  of  Confederation. 
By  these  the  Union  was  solemnly  declared  to  'be  perpetual.' 
And  when  these  Articles  were  found  .  .  .  inadequate  .  .  .,  the 
Constitution  was  ordained  "to  form  a  more  perfect  Union." 
It  is  difiicult  to  convey  the  idea  of  indissoluble  unity  more 
clearly  than  by  these  words.  What  can  be  indissoluble  if  a 
perpetual  Union,  made  more  perfect,  is  not? 

The  Constitution  .  .  .  looks  to  an  indestructible  Union 
composed  of  indestructible  States.  When,  therefore,  Texas 
became  one  of  the  United  States,  she  entered  into  an  indissolu- 
ble relation.  .  .  .  Considered  ...  as  transactions  under  the 
Constitution,  the  ordinance  of  secession  .  .  .  and  all  the  acts 
of  [the]  legislature  intended  to  give  effect  to  that  ordinance, 
were  absolutely  null.  They  were  utterly  without  operation  in 
law. 

In  the  settlement  of  that  famous  query  "Can  the  Fed- 
eral Government  coerce  a  State?"  the  emphasis  was 
shifted,  and  the  question  "Can  a  State  constitutionally 
withdraw  from  the  Union?"  was  answered  in  the  nega- 
tive.2* 

**  For  further  study  of  secession  in  its  legal  aspects  the  following 
points  may  be  noted.  The  Constitution  forbids  a  State  from  entering 
"into  any  .  .  .  confederation,"  and  from  "entering  into  any  agreement 
or  compact  with  another  State"  without  the  consent  of  Congress. 
(Art.  I,  sec.  10,  cl.  1  and  cl.  3.)  This  section  has  been  interpreted  as 
rendering  the  Confederate  States'  Government  illegal.  (Williams  vs. 
Bruffy,  96  U.  S.  183;  Lamar  vs.  Micou,  112  U.  S.  476.)  The  answer 
of  the  South  to  this  contention  was  that  these  prohibitions  applied 
only  so  long  as  the  States  remained  in  the  Union,  and  that  they 
did  not  preclude  withdrawal.  In  Dodge  vs.  Woolsey,  18  How.  331, 
351,  the  Supreme  Court  declared  that  the  States  are  not  independent 
of  each  other  in  respect  to  the  powers  ceded  to  the  United  States; 
and  it  has  been  declared  in  various  decisions  that  the  States  have  but  a 
qualified  sovereignty.  (See,  for  instance,  Fletcher  vs.  Peck,  6  Cranch 
136;  U.  S.  vs.  Rauscher,  119  U.  S.  412.)  For  a  full  citation  of  cases 
on  this  subject,  see  Sen.  Doc.  No.  96,  67  Cong.,  2  sess.,  pp.  261  et  seq. 
and  pp.  361  et  seq.  An  elaborate  report  covering  both  sides  is  given 
in  House  Rep.  No.  SI,  36  Cong.,  2  sess.,  and  the  debates  of  the 
Thirty-Sixth  (Ilongress  should  also  be  studied. 


CHAPTER  II 

THE   CONSTITUTION   AND  THE   WAR  POWERS 

I.   The  Anglo-Saxon  disposition  to  hold  the  government 

under  the  law  even  in  time  of  war 
II.   War  powers  under  the  Constitution  of  the  United 
States 

III.  Duration  of  the  war  powers 

IV.  War  powers  of  the  President 
V.   War  powers  of  Congress 

VI.   Leniency  in  the  practical  application  of  severe  war 
measures 


Concerning  governmental  powers  in  time  of  war,  there 
is  a  striking  contrast  between  the  view  whi^ch  prevailed 
in  imperial  Germany  (to  take  an  example  of  a  militaristic 
nation)  and  that  which  holds  in  England  or  the  United 
States.  There  is  in  English-speaking  jurisdictions,  for 
instance,  nothing  which  corresponds  to  the  German 
Kriegzustand.  Under  the  old  German  system,  it  was 
within  the  competence  of  the  Kaiser  to  proclaim  a  "state 
of  war"  throughout  Germany,  and  thus  to  inaugurate  a 
sweeping  military  regime  under  which  the  ordinary  laws 
and  the  authority  of  the  civil  courts  were  superseded  by 
the  orders  of  the  generals  commanding  the  various  dis- 
tricts into  which  the  country  was  divided. 

This  military  regime,  be  it  noticed,  was  launched 
purely  by  executive  action,  and  covered  the  whole  coun- 
try. It  was  universal  martial  law,  not  limited  martial 
law  based  on  the  fact  of  invasion,  or  actual  defiance  of 

25 


26    THE  CONSTITUTION  UNDER  LINCOLN 

authority  in  particular  parts  of  the  country.  It  applied 
everywhere,  and  rested  merely  on  the  Emperor's  procla- 
mation of  the  state  of  war.  Under  it  the  commanders 
could  make  seizures  and  arrests  without  warrant,  im- 
prison without  judicial  process,  suppress  newspapers, 
prevent  political  meetings,  and  do  many  similar  things 
with  entire  disregard  of  the  restraints  of  the  civil  law.^ 

Such  a  condition  actually  existed  in  Germany  through- 
out the  World  War  and  it  may  serve  for  us  as  a  starting 
point  to  illustrate  what  is  meant  by  the  "war  power" 
when  carried  to  the  extreme. 

In  contrast  to  this  expansion  of  executive  action  during 
war,  the  Anglo-Saxon  tendency  has  been  always  to  em- 
phasize the  "rule  of  law,"  and  to  regard  the  military 
power  as  subordinate  to  the  civil.  In  England,  and  also 
in  the  United  States,  martial  law,  which  has  been  de- 
scribed as  "no  law  at  all,"  has  been  very  sparingly  used; 
and  any  general  order,  subjecting  the  whole  nation  to 
military  rule  for  the  duration  of  the  war,  regardless  of 
any  insurrection  or  threat  of  invasion,  would  be  most 
unlikely.  This  disposition  to  hold  the  government  at  all 
times  within  the  law,  and  this  wariness  in  the  exercise 
of  military  power  over  civilians,  are  fundamental  postu- 
lates in  any  discussion  of  war  powers  in  the  United 
States.2 

The  inevitable  appeal  from  law  to  necessity  was,  of 
course,  frequently  presented  during  the  Civil  War.    "Ne- 


*The  legal  basis  for  martial  law  in  Germany  was  Article  68  of  the 
German  Imperial  Constitution.  Walter  F.  Dodd,  Modern  Constitu- 
tions, I,  348;  Burt  E.  Howard,  The  German  Empire,  46.  Certain  phases 
of  this  subject  are  discussed  in  the  writer's  article,  "Germany's  Cen- 
sorship and  News  Control,"  in  the  North  American  Review,  July, 
1918. 

*The  subject  of  martial  law  as  it  is  regarded  in  England  and  the 
United  States  is  treated  below  in  Chapter  VII,  and  the  citation 
of  authorities  is  given  in  note  7  of  that  chapter. 


THE  WAR  POWERS  27 

cessity  knows  no  law" — "inter  arma  silent  leges,"  were 
the  oft-quoted  slogans.  The  mihtary  arm,  it  was  said, 
must  not  be  so  restrained  as  to  be  ineffectual.  This 
means  that,  once  you  have  war,  legal  guarantees  of  per- 
sonal rights  are  to  be  swept  aside,  and  "efficiency"  for 
military  purposes  is  to  be  achieved  whatever  the  cost. 
The  law  of  military  necessity,  however,  is  not  the  typical 
American  principle.  To  say  that  military  force  is  not  to 
be  restrained  in  war  by  the  superior  power  of  law,  is  to 
quote  the  militaristic  view  as  against  that  which  has 
always  prevailed  here. 

There  are  at  least  three  ways  in  which  military 
authority  should  be  restrained  in  war: 

1.  By  treaty  obligations,  except  those  which  war  ter- 
minates. There  are,  of  course,  many  treaty  provisions 
which  not  only  endure  during  war,  but  are  made  for  the 
special  case  of  war.  Such  are  the  treaty  engagements 
concerning  the  rights  of  neutral  nations,  as,  for  instance, 
the  pledge  that  the  permanently-neutralized  character 
of  a  certain  nation  shall  be  respected.  It  is  only  with 
reference  to  a  possible  state  of  war  that  such  treaties 
have  significance. 

2.  By  the  "laws  of  civilized  warfare."  In  our  time, 
these  laws  are  embodied  in  the  Hague  conventions,  and 
in  similar  international  codes.  For  the  Civil  War  the 
United  States  Government  issued,  as  "General  Order 
No.  100,"  a  codification  of  the  laws  of  war,  prepared  by 
an  eminent  legal  authority.  Dr.  Francis  Lieber.^  It  was 
made  binding  upon  all  the  Union  armies  and  enforceable 
through  courts-martial. 

3.  By  a  due  regard  for  citizens'  rights,  both  in  con- 

*  War  of  the  Rebellion:  Official  Records  of  the  Union  and  Con- 
federate Armies  [hereafter  cited  as  "0.  R."],  Ser.  II,  Vol.  5,  pp.  671- 
682.  It  has  been  held  by  the  Supreme  Court  that  international  law 
"is  part  of  our  law."    (Hilton  vs.  Guyot,  159  U.  S.  113,  163.) 


28    THE  CONSTITUTION  UNDER  LINCOLN 

quered  territory  and  at  home.  Even  during  war  the  per- 
sonal and  property  rights  of  the  citizen,  according  to 
the  Anglo-Saxon  viewpoint,  must  be  preserved.  Unless 
there  is  actual  invasion  or  insurrection,  the  laws  are  not 
to  be  suspended  by  a  military  regime  at  home;  and  in 
the  case  of  occupied  enemy  territory,  the  ordinary  ad- 
ministration of  the  laws  by  the  local  authorities  is  sup- 
posed to  continue,  subject  only  to  the  intervention  of 
military  force  in  the  case  of  a  serious  unlawful  outbreak. 
To  ignore  these  three  restraints  is  simply  to  conduct 
war  in  an  uncivilized  manner.  War,  properly  con- 
ducted, is  not  anarchy;  and,  though  the  maxim  contains 
perhaps  a  kernel  of  truth,  it  is  not  in  keeping  with  the 
American  view  to  repeat  that  "necessity  knows  no  law." 


II 

We  may  now  ask:  How  far  are  the  "war  powers"  con- 
sistent with  the  American  Constitution?*  The  perti- 
nent provisions  of  the  Constitution  are  the  following: 

The  Congress  shall  have  power  ...  to  declare  war;  .  .  . 
to  raise  and  support  armies,  but  no  appropriation  of  money  to 
that  use  shall  be  for  a  longer  term  than  two  years;  to  provide 
and  maintain  a  navy;  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces;  to  provide  for  calHng 
forth  the  militia  to  execute  the  laws  of  the  Union,  suppress 
insurrections  and  repel  invasions;  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing  such 
part  of  them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States  ...  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to 
the  discipline  prescribed  by  Congress;  .  .  .  [and]  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 

*Some  treatment  of  the  "war  powers"  in  the  United  States  is  given 
in  Home  Rep.  No.  262,  43  Cong.,  1  sess.,  pp.  10-11. 


THE  WAR  POWERS  29 

execution  the  foregoing  powers,  and  all  other  powers  vested 
...  in  the  Government  of  the  United  States. 


In  addition  to  these  specific  provisions,  it  should  be 
mentioned  that  the  executive  power  is  vested  in  the 
President,  that  he  takes  oath  "faithfully  [to]  execute 
the  office  of  President,"  and  to  "preserve,  protect  and 
defend  the  Constitution  of  the  United  States,"  and  that 
he  is  "Commander-in-Chief  of  the  army  and  navy,"  and 
of  the  militia  when  in  Federal  service. 

These  are  provisions  that  relate  directly  to  the  sub- 
ject of  war.  But  there  are  other  provisions  of  a  limiting 
sort,  which  seem  inconsistent  with  the  full  exercise  of 
the  war  power.  There  is  the  limitation  which  prohibits 
any  law  abridging  freedom  of  speech  or  of  the  press,  or 
the  right  of  assembly;  and  in  the  fourth,  fifth,  and  sixth 
amendments  there  are  important  guarantees  covering 
security  from  unreasonable  searches  or  unwarranted 
arrests,  freedom  from  criminal  punishment  except  upon 
indictment  and  trial,  immunity  of  persons  and  property 
from  interference  without  due  process  of  law,  and  pro- 
tection of  the  accused  by  the  use  of  those  devices  which 
tend  to  insure  complete  judicial  determination  of  every 
fact,  and  absolute  impartiality  in  the  conduct  of  trials. 
These  devices  include  speedy  trial  by  an  impartial  jury, 
the  right  of  the  accused  to  be  informed  of  the  nature  of 
the  accusation,  the  right  to  summon  witnesses  in  his 
behalf  as  well  as  to  confront  contrary  witnesses,  and  the 
right  of  counsel.  In  the  various  discussions  concerning 
the  "war  powers"  during  the  Civil  War,  the  first,  fourth, 
fifth,  and  sixth  amendments,  and  the  habeas  corpus 
clause,  were  more  particularly  held  in  mii^d  than  any 
other  parts  of  the  Constitution.  The  reserved  power 
theory,  and  the  fact  that  the  Constitution  as  a  whole 
was  a  grant  of  power  to  Congress,  while  such  power  as 


30    THE  CONSTITUTION  UNDER  LINCOLN 

was  not  granted  was  withheld,  were  also  frequently 
emphasized. 

Apart  from  particular  provisions,  the  pacific,  non- 
aggressive  spirit  of  the  Constitution  was  stressed.  The 
Supreme  Court  itself  has  pointed  out  that  the  Consti- 
tution-makers wanted  to  make  war  diflBcult,  and  that 
the  sentiment  of  opposition  to  wars  of  conquest  or  of 
aggression  had  much  to  do  in  shaping  the  provisions 
which  relate  to  war.  The  convention  definitely  intended 
to  preclude  an  aggressive  war.^  Instead  of  conferring 
upon  Congress  the  power  "to  make  war,"  the  power  to 
"declare  war"  was  substituted;  and  while  it  is  generally 
conceded  that  Congress  also  has  the  power  to  "wage 
war,"  to  "carry  on  war,"  or  to  "prosecute  war,"  ®  still 
such  power  is  to  be  derived  rather  by  implication  than 
by  express  mention. 

In  attacking  the  problem  of  the  war  powers  under  the 
Constitution,  the  men  of  Civil  War  time  were,  in  gen- 
eral, divided  among  three  different  opinions: 

1.  Opponents  of  the  Lincoln  administration  held  that 
the  Government  should  stick  to  the  Constitution  even 
in  war;  that  a  strict  interpretation  of  the  instrument 
should  be  adopted  which  would  disallow  many  of  the 
measures  taken  by  the  Government,  and  that  these 
measures  should  therefore  be  abandoned. 

2.  Extreme  advocates  of  the  war  power  held  that  the 
Constitution  is  not  operative  during  such  a  crisis  as  the 
Civil  War  presented.  This  was  the  view  of  Thaddeus 
Stevens,  who  said  he  "would  not  stultify"  himself  by 
supposing  that  a  certain  measure  was  constitutional,  but 
he  went  ahead  and  voted  for  it  regardless  of  its  uncon- 

'  Fleming  vs.  Page,  9  How.  603;  Chambrun,  A.  de,  Le  Pouvoir  Execu- 
tif  aux  Etats  Unis,  Ch.  v. 
•See  injra,  p.  42,  n.  26. 


THE  WAR  POWERS  31 

stitutionalityJ  Senator  Sumner  agreed  with  this  view. 
"War,"  he  declared,  "cannot  be  conducted  in  vinculis. 
In  seeking  to  fasten  upon  it  the  restraints  of  the  Con- 
stitution, you  repeat  the  ancient  tyranny  which  com- 
pelled its  victims  to  fight  in  chains.  Glorious  as  it  is 
that  the  citizen  is  surrounded  by  the  safeguards  of  the 
Constitution,  yet  this  rule  is  superseded  by  war  which 
brings  into  being  other  rights  which  know  no  master,"  ® 
In  such  a  view  there  is  a  quality  of  forthrightness  and 
frankness  which  most  statesmen  of  the  time  did  not 
exhibit.  Many  there  were  who  found  everything  legal 
which  they  desired  to  do.  Such  an  attitude  has  been 
associated  with  the  term  "Jesuit  ethics"  and  its  motto 
has  been  thus  stated:  "Fix  your  mind  and  attention  upon 
one  object  which  you  think  a  lawful  one,  and  then  all 
the  means  are  lawful."  ^ 

3.  A  third  position  was  to  admit  that  the  Constitu- 
tion is  binding  during  war  and  yet  to  maintain  that  it 
sanctions  extraordinary  powers.  Those  supporting  this 
view  differed  from  the  first  group  in  adopting  a  liberal 
interpretation  which  would  justify  severe  measures  as. 
lawful  within  the  Constitution. 

On  this  broad  issue  the  Supreme  Court  spoke  as  fol- 
lows in  the  Milligan  case:  "The  Constitution  of  the 
United  States  is  a  law  for  rulers  and  people,  equally  in 
war  and  in  peace,  and  covers  ...  all  classes.  .  .  .  No 
doctrine  involving  more  pernicious  consequences  was 
ever  invented  by  the  wit  of  man  than  that  any  of  its 
provisions  can  be  suspended  during  any  of  the  great  exi- 
gencies of  government.     Such  a  doctrine  leads  directly 

^Cong.  Globe,  37  Cong.,  3  sess.,  pp.  50-51. 

'Ibid.,  37  Cong.,  2  sess.,  p.  2196. 

'Ann.  Cyc,  1863,  p.  289.  Much  thinking  is  mere  rationalizing: 
"finding  arguments  for  going  on  believing  as  we  already  do."  (J.  H. 
Robinson,  Mind  in  the  Making,  41.) 


32     THE  CONSTITUTION  UNDER  LINCOLN 

to  anarchy  or  despotism,  but  the  theory  of  necessity  on 
which  it  is  based  is  false;  for  the  government,  within 
the  Constitution,  has  all  the  powers  granted  to  it  which 
are  necessary  to  preserve  its  existence."  ^° 

A  like  opinion  was  expressed  by  Mr.  Hughes,  former 
justice  of  the  Supreme  Court,  in  1917.  "While  we  are 
at  war,"  he  said,  "we  are  not  in  revolution.  We  are 
making  war  as  a  nation  organized  under  the  Constitu- 
tion, from  which  the  established  national  authorities 
derive  all  their  powers  either  in  war  or  in  peace.  The 
Constitution  is  as  effective  to-day  as  it  ever  was  and  the 
oath  to  support  it  is  just  as  binding.  But  the  framers 
of  the  Constitution  did  not  contrive  an  imposing  spec- 
tacle of  impotency.  One  of  the  objects  of  a  'more  per- 
fect Union'  was  'to  provide  for  the  common  defense.' 
A  nation  which  could  not  fight  w^ould  be  powerless  to 
secure  'the  Blessings  of  Liberty  to  Ourselves  and  our 
Posterity.'  Self-preservation  is  the  first  law  of  national 
life  and  the  Constitution  itself  provides  the  necessary 
powers  in  order  to  defend  and  preserv^e  the  L^nited 
States.  Otherwise,  as  Mr.  Justice  Story  said,  'the  coun- 
try would  be  in  danger  of  losing  both  its  liberty  and  its 
sovereignty  from  its  dread  of  investing  the  public  coun- 
cils with  the  power  of  defending  it.'  "  ^^ 

There  is  a  passage  in  the  opinion  of  Justice  Agnew, 
of  Pennsylvania,  concerning  the  constitutionality  of  the 
draft,  which  is  worth  quoting  in  this  connection.  It 
announces  what  might  be  called  the  principle  of  the 
supremacy  of  a  general  power  for  vital  purposes.    The 


"71  U.  S.  2.  One  of  the  great  doctrines  of  the  Milligan  case  was 
that  Congress  is  restrained  by  the  Constitution  even  during  war. 
See  Chafee,  Freedom  of  Speech,  33. 

^  "War  Powers  under  the  Constitution,"  an  address  of  Charles  E. 
Hughes  before  the  American  Bar  Association,  Saratoga,  N.  Y.,  Sept., 
1917.    Sen.  Doc.  No.  105,  65  Cong.,  1  sess.,  p.  3. 


THE  WAR  POWERS  33 

judge  said:  "Where  a  general  power  is  vested  in  plain 
and  absolute  language,  without  exception  or  proviso,  for 
high,  vital,  and  imperative  purposes,  which  will  be  crip- 
pled by  interpolating  a  limitation,  the  advocate  of  the 
restriction  must  be  able  to  point  out  somewhere  in  the 
Constitution  a  clause  which  declares  the  restriction,  or  a 
higher  purpose  which  demands  it."  ^^ 

It  would  be  safe  to  sum  up  the  prevailing  views  of 
our  judges  by  saying  that  the  war  powers  are  entirely 
consistent  with  the  Constitution,  and  that  these  war 
powers  include  all  that  is  essential  to  the  nation's 
preservation. 

in 

One  of  the  questions  that  was  much  discussed  during 
the  period  of  the  Civil  War  was  that  of  the  duration  of 
the  war  powers,  and  on  this  point  there  was  no  little 
confusion  of  thought.  Holding  that  war  powers  last 
only  during  war,  many  insisted  that,  once  the  conflict 
was  concluded,  the  validity  of  rights  acquired  under 
wartime  measures  ceased. 

But  it  is  a  mistake  to  suppose  that  war  powers  include 
only  those  acts  which  have  effect  during  war.  Rights 
under  the  laws  of  war  must,  of  course,  be  exercised  only 
during  war,  but  it  does  not  follow  that  acts  performed 
under  such  rights  lose  their  effect  and  validity  when  the 
war  ends.  There  are  various  things,  such  as  the  for- 
feiture of  contraband  goods  and  the  seizure  of  enemy 
private  property  on  enemy  ships,  which  may  be  done 
once  for  all  under  the  laws  of  war.  If  measures  of  this 
nature  should  be  undone  after  the  war,  such  a  course 
would  be  unusual,  not  regular,  and  would  be  based  most 
probably  upon  some  special  treaty  provision.    There  are 

"45  Pa.  238. 


34     THE  CONSTITUTION  UNDER  LINCOLN 

various  things  which  a  belligerent  may  lawfully  do  with 
permanent  legal  efifect.  Peace  does  not  normally  undo 
such  acts. 

Many  measures,  of  course,  are  in  their  very  nature 
temporary.  Such  would  be  the  occupation  of  private 
houses  for  billeting  soldiers,  the  use  of  public  buildings, 
the  holding  of  prisoners,  and  the  like.  These  measures 
are  originally  taken  in  the  consciousness  that  they  are 
limited  to  the  duration  of  the  war.  But  other  measures, 
quite  as  clearly  within  the  laws  of  war,  do  outlast  the 
conflict. 

There  was  much  doubt  and  argument  as  to  the  post- 
war validity  of  various  acts  performed  as  "war  measures" 
during  the  Civil  War,  but  in  cases  where  such  doubts 
were  reasonable  the  measures  in  question  were,  to  begin 
with,  of  doubtful  validity,  as,  for  instance,  the  Presi- 
dent's proclamation  emancipating  the  slaves.  If  the 
permanent  emancipation  of  enemies'  slaves  had  been  as 
universally  recognized  under  the  laws  of  war  as  the  per- 
manent confiscation  of  contraband  goods,  there  would 
have  been  less  question  as  to  the  post-bellum  effect 
of  the  proclamation.  As  a  rule  those  who  doubted 
the  permanent  validity  of  this  edict  of  emancipation 
doubted  its  immediate  law-worthiness  as  well.  In  gen- 
eral, those  acts  taken  with  an  intention  of  permanency 
which  fell  within  the  category  of  proper  war  measures, 
were  of  lasting  validity. 


IV 

In  the  next  place  we  are  led  to  inquire:  What  were 
the  "war  powers"  during  the  Civil  War?  This  is  a  sub- 
ject which  will  be  elaborated  in  succeeding  chapters,  but 
a  few  general  matters  may  be  noted  at  this  point. 

The  Government  had,  of  course,  the  power  to  use  its 


THE  WAR  POWERS  35 

army  and  navy  against  the  army  and  navy  of  the  enemy, 
but  this  use  of  mihtary  force  against  military  force  is 
not  what  is  ordinarily  meant  by  the  "war  power."  The 
term  usually  relates  to  the  use  of  governmental  authority 
outside  the  usual  and  normal  sphere.  It  is  this  extraor- 
dinary reach  of  the  Government's  strong  arm,  bearing 
upon  civilians,  that  we  usually  have  in  mind  when  we 
speak  of  the  ''war  power";  for  the  use  of  military  meth- 
ods in  deahng  with  military  situations  is  too  obvious  to 
excite  comment. 

It  may  be  well  to  note  first  the  war  power  of  th© 
President,  and  then  consider  that  of  the  legislature. 
There  is  a  certain  looseness  in  the  constitutional  grant 
of  executive  power  which  is  in  sharp  contrast  to  the 
specification  of  the  powers  of  Congress.  It  is  the  "legis- 
lative powers  herein  granted"  that  are  bestowed  upon 
Congress,  but  it  is  simply  the  "executive  power"  that  is 
vested  in  the  President.  In  consequence  of  the  meager 
enumeration  of  presidential  powers  in  the  Constitution, 
this  branch  of  our  law  has  undergone  a  process  of 
development  by  practice  and  by  judicial  decision. 

Some  of  the  main  lines  of  this  development  may  be 
noted.  The  President,  like  every  other  officer,  is  under 
the  law.  "There  is  no  undefined  residuum  of  power 
which  he  can  exercise  because  it  seems  to  him  to  be  in 
the  public  interest."  The  President's  sources  of  power 
must  be  found  in  the  Constitution  or  in  some  act  of 
Congress. ^^  Yet  the  President  has  large  discretionary 
power — a  power  which  assumes  great  importance  in 
times  of  emergency.  If  not  authorized  to  assume  the 
role  of  dictator,  he  is  at  least  clothed  with  latent  powers 
which  in  time  of  war  are  capable  of  wide  expansion.  It 
seems  to  have  been  the  definite  intention  of  the  Con- 

"  W.  H.  Taft,  Our  Chief  Magistrate  and  His  Powers,  139-140. 


36     THE  CONSTITUTION  UNDER  LINCOLN 

stitution-makers  that  the  power  to  repel  sudden  attacks 
should  be  lodged  in  the  President,  and  it  is  reasonably 
maintained  that  he  has  authority  to  wage  a  defensive 
war  without  direct  authorization  from  Congress.  The 
President  controls  the  army  and  navy  and  may  order 
them  where  he  thinks  best.  In  addition  to  his  authority 
over  military  persons,  he  has  great  power  over  the  rights 
of  civilians,  a  power  especially  related  to  the  declaration 
of  martial  law  and  the  establishment  of  military  com- 
missions. "Powers  of  police  control"  have  been  assumed 
by  various  presidents  and  this  sometimes  involves  the 
withholding  of  certain  individual  rights  normally  guar- 
anteed, as  when  aliens  are  held  under  sur\'eillance, 
dangerous  citizens  summarily  arrested,  or  censorship 
imposed  in  the  interest  of  public  safety.^* 

As  interpreted  by  President  Lincoln,  the  war  power 
specifically  included  the  right  to  determine  the  existence 
of  "rebellion"  and  call  forth  the  militia  to  suppress  it; 
the  right  to  increase  the  regular  army  by  calling  for  vol- 
unteers beyond  the  authorized  total;  the  right  to  sus- 
pend the  habeas  corpus  privilege;  the  right  to  proclaim 
martial  law;  the  right  to  place  persons  under  arrest 
without  warrant  and  without  judicially  showing  the 
cause  of  detention;  the  right  to  seize  citizens'  property 
if  such  seizure  should  become  indispensable  to  the  suc- 
cessful prosecution  of  the  war;  the  right  to  spend  money 
from  the  treasury  of  the  United  States  without  con- 
gressional appropriation;  ^^  the  right  to  suppress  news- 

"  For  an  able  and  comprehensive  discussion  of  this  whole  subject, 
see  C.  A.  Berdahl,  War  Powers  of  the  Executive  in  the  United  States 
{Univ.  of  III.  Studies  in  the  Social  Sciences,  Vol.  IX). 

"In  reporting  to  Congress  various  measures  taken  to  meet  the  na- 
tional emergency,  Lincoln  stated  that  early  in  the  war  he  gave  large 
powers  to  certain  tnisted  citizens  who  were  to  make  arrangements 
for  transporting  troops  and  supplies  and  otherwise  providing  for  the 
public  defense.  Doubting  the  loyalty  of  certain  persons  in  the  gov- 
ernment departments,  he  directed  the  Secretary  of  the  Treasury  to 


THE  WAR  POWERS  37 

papers;  and  the  right  to  do  unusual  things  by  proclama- 
tion, especially  to  proclaim  freedom  to  the  slaves  of 
those  in  arms  against  the  Government.  These  were  some 
of  the  conspicuous  powers  which  President  Lincoln  exer- 
cised, and  in  the  exercise  of  which  he  was  as  a  rule, 
though  not  without  exception,  sustained  in  the  courts. 

Analyzing  the  President's  war  power  further,  we  find 
that  besides  the  executive  power,  which  during  the  war 
expanded  enormously,  there  was  a  considerable  amount 
of  "presidential  legislation"  (for  in  many  cases  it  vir- 
tually amounted  to  that),  and  there  were  also  notable 
instances  of  presidential  justice. 

The  subject  of  presidential  legislation  is  difficult,  be- 
cause the  President's  power  of  issuing  regulations  and 
executive  orders  shades  almost  imperceptibly  into  the 
exercise  of  the  legislative  function  itself.  President  Lin- 
coln issued  "regulations"  for  the  enforcement  of  the 
Militia  Act  of  1862  which  established  conscription  for 
the  first  time  during  the  war.  The  act  itself  did  not 
specifically  authorize  conscription  at  all,  and  so  far  as 
the  draft  was  used  in  1862  (in  Indiana,  Wisconsin,  and 
other  States)  it  rested  upon  these  executive  regulations. 
What  is  more,  these  regulations  permitted  State  gov- 
ernors to  devise  for  their  States  compulsory  systems  of 
raising  the  militia  if  they  preferred  not  to  follow  the 
plan  included   within   the   President's  regulations.     In 

advance  two  million  dollars  of  public  money  without  security  to 
John  A.  Dix,  George  Opdyke,  and  Richard  H.  Blatchford,  of  New 
York,  to  pay  the  expenses  of  certain  "military  and  naval  measures 
necessary  for  the  defense  and  support  of  the  Government."  This 
would  seem  to  have  been  in  violation  of  that  clause  of  the  Consti- 
tution (Art.  I,  sec.  9,  par.  7)  which  provides  that  "no  money  shall 
be  drawn  from  the  Treasury  but  in  consequence  of  appropriations 
made  by  law."  Lincoln  confessed  the  irregularity  of  this  procedure 
when  he  said,  "I  am  not  aware  that  a  dollar  of  the  public  funds  thus 
confided  without  authority  of  law  to  unofficial  persons  was  either  lost 
or  wasted."  (Lincoln's  message  to  Congress,  May  26,  1862:  Nicolay 
and  Hay,  Works,  VII,  189-194.) 


38     THE  CONSTITUTION  UNDER  LINCOLN 

another  chapter  this  subject  will  be  more  fully  dis- 
cussed/® but  for  our  present  purpose  it  is  important  to 
notice  that  the  President  was  accused  of  usurping  the 
legislative  power  in  promulgating  such  far-reaching 
regulations. 

Other  instances  of  presidential  action  resembling  leg- 
islation were  not  lacking.  On  IMay  3.  1861,  the  Presi- 
dent enlarged  the  army  of  the  United  States  by  his  call 
for  volunteers/"  an  act  which  is  to  be  carefully  distin- 
guished from  the  earlier  call,  on  April  15,  for  75,000 
militia.  The  May  call  was  of  the  sort  that  usually  fol- 
ows  congressional  action  authorizing  the  increase  of  the 
army.  It  was  made  in  anticipation  of  congressional  au- 
thority, which  was  later  given  in  the  short  special  session 
of  '61.  A  still  more  striking  instance,  which  was  widely 
regarded  as  executive  assumption  of  legislative  power, 
was  the  proclamation  of  December  8,  1863,  in  which 
Lincoln  promulgated  a  comprehensive  plan  of  recon- 
struction, outlining  in  detail  the  method  by  which  the 
States  of  the  South  were  to  be  restored  to  the  Union. ^* 

One  more  example  of  presidential  legislation  may  be 
noted.  In  issuing  a  ''general  order"  embodying  the 
rules  of  war  applicable  to  armies  in  the  field,  Lincoln 
was  promulgating  a  whole  code  of  laws.  It  could  be 
argued  with  good  reason  that  in  so  doing  he  was  per- 
forming that  function  which  the  Constitution  gives  to 
Congress  of  making  "rules  for  the  government  and  regu- 
lation of  the  land  and  naval  forces."  ^^  In  England 
such   rules  are  established  by  Parliament,   as  in   the 

"Chapter  XI. 

"  "I  never  met  anyone  who  claimed  that  the  President  could,  by 
proclamation,  increase  the  regular  army."  (John  Sherman  in  letter 
to  Cincinnati  Gazette,  Aug.  12,  1861,  New  York  Tribune,  Aug.  23, 
1861.  p.  7.) 

"Nicolay  and  Hay,  Works,  IX,  218. 

"  U.  S.  Constitution,  Art.  I,  sec.  8,  par.  14. 


THE  WAR  POWERS  39 

Mutiny  Act,  while  at  various  times  our  own  Congress 
has  put  forth  a  military  code  in  its  "Articles  of  War." 
Though  the  code  was  derived  from  existing  interna- 
tional law,  its  promulgation  was  none  the  less  a  truly 
legislative  function. 

Though  the  President  did  not  hesitate  to  act  if  neces- 
sary without  congressional  authorization,  it  is  also  to  be 
noted  that,  in  part,  the  President's  war  power  is  derived 
from  Congress.  This  fact  is  well  expressed  by  Mr. 
Hughes  in  the  following  words: 

It  is  ...  to  be  observed  that  the  power  exercised  by  the 
President  in  time  of  war  is  greatly  augmented  outside  of  his 
functions  as  Commander-in-Chief  through  legislation  of  Con- 
gress increasing  his  administrative  authority.  War  demands 
.  .  .  efficient  organization,  and  Congress  in  the  nature  of 
things  cannot  prescribe  many  important  details  as  it  legislates 
for  the  purpose  of  meeting  the  exigencies  of  war.  Never  is 
adaptation  of  legislation  to  practical  ends  so  urgently  re- 
quired, and  hence  Congress  naturally  in  very  large  measure 
confers  upon  the  President  the  authority  to  ascertain  and 
determine  various  states  of  fact  to  which  legislative  measures 
are  addressed.  .  .  .  We  thus  .  .  .  find  ...  a  vast  increase  of 
administrative  authority  through  legislative  action  springing 
•from  the  necessities  of  war.  ^° 

As  to  presidential  justice,  we  should  note  in  the  first 
place  that  the  separation  of  the  executive  and  judicial 
branches  is  not  as  complete  as  is  often  supposed.  Not 
only  does  the  President  have  the  power  of  pardon,  which 
may  undo  any  punishment  decreed  by  a  Federal  court; 
he  has  also,  through  his  Attorney  General  and  the  dis- 
trict attorneys,  the  important  function  of  initiating  and 
conducting  prosecutions.  The  extent  to  which  cases 
shall  be  prosecuted  judicially  is  a  matter  resting  with 

*  Charles  E.  Hughes,  op.  cit.,  p.  9. 


40     THE  CONSTITUTION  UNDER  LINCOLN 

the  President.  He  may  favor  a  vigorous  enforcement, 
or  he  may  let  the  laws  be  violated  with  impunity.  Even 
while  a  case  is  pending,  the  Government's  attorney  may 
bring  about  a  dismissal  of  the  proceeding  by  a  nolle 
prosequi,  which  terminates  the  case  as  effectively  as  if 
a  decree  for  the  defendant  had  been  pronounced  by  the 
court.  This,  of  course,  is  a  normal,  regular  function  of 
the  executive;  but  its  special  importance  in  war,  when 
unusual  penal  statutes  are  to  be  carried  out,  will  be 
readily  recognized. 

The  President  is  the  fountainhead  of  military  jus- 
tice, and  as  such  has  the  power  of  review  over  the  deci- 
sions of  military  courts.  Through  the  declaration  of 
martial  law,  and  the  establishment  of  military  commis- 
sions to  try  civilians,  the  authority  of  the  military 
courts  is  greatly  expanded,  and  the  ordinary  civil  courts 
are  for  the  time  superseded.  That  this  can  all  be  accom- 
plished in  war  time  by  the  President  is  but  another  way 
of  saying  that  presidential  justice  during  war  is  an  im- 
portant factor.  It  was  the  view  of  the  Supreme  Court 
that  this  expansion  of  the  executive  power  was  carried 
too  far  under  Lincoln's  administration,  and  that  excep- 
tional tribunals  in  districts  not  affected  by  actual 
insurrection  were  illegal.^^ 

As  a  further  illustration  of  presidential  justice,  it  may 
be  noticed  that  various  "special  war  courts"  were  cre- 
ated by  the  authority  of  President  Lincoln.  The  mili- 
tary power  in  conquered  territory  was  interpreted  as 
conferring  the  right  to  create  civil  and  criminal  courts 
to  handle  the  sorts  of  cases  that  are  normally  handled 
by  the  ordinary  State  courts.  Department  commanders 
had  the  right  to  create  such  courts  under  the  authority 
of  the  President.     The  provost  court  of  the  United 

'iEx  parte  Milligan,  4  Wall.  106. 


THE  WAR  POWERS  41 

States  army  for  the  city  of  New  Orleans  had  a  general 
criminal  jurisdiction  (not  confined  to  mihtary  cases), 
and  the  more  important  "provisional  court  of  Louisi- 
ana," created  by  President  Lincoln  in  December,  1862, 
had  an  almost  unlimited  jurisdiction,  its  powers  being 
confined  only  ''by  the  limits  of  human  acts  and  trans- 
actions capable  of  becoming  subjects  of  judicial  inves- 
tigation." ^-  Dealing  with  matters  that  ordinarily  fall 
within  State  jurisdiction  it  enforced  Federal  laws  as 
well. 

In  addition  to  these  cases  of  judicial  authority  exerted 
by  the  President,  there  were  various  acts  of  Congress 
which  conferred  judicial,  or  quasi- judicial,  functions 
upon  executive  ofiicers.  The  Freedmen's  Bureau,  for 
instance,  had  its  own  courts,  whose  authority  overbore 
that  of  the  State  tribunals;  and  the  Secretary  of  the 
Treasury,  as  a  consequence  of  his  administration  of  the 
act  concerning  captured  and  abandoned  property,  exer- 
cised, for  a  while,  the  judicial  function  of  determining 
individual  cases  where  claims  were  made  for  the  res- 
toration of  property  on  the  basis  of  loyalty.  Taking  it 
all  together  then,  it  will  be  seen  that  President  Lin- 
coln's acts  and  the  acts  of  those  under  his  authority, 
extended  far  beyond  the  executive  sphere,  and  trenched 
upon  the  domain  of  Congress  and  of  the  courts. 


When  we  turn  to  the  war  power  of  Congress,  we 
encounter  a  subject  which  has  been  widely  debated.  It 
was  contended  by  Senator  Sumner  in  1862  that  the  war 
powers  of  the  national  legislature  were  virtually  without 

"Judge  Charles  A.  Peabody,  "United  States  Provisional  Court  for 
.  .  .  Louisiana,  1862-1865,"  Amer.  Hist.  Ass.  Ann.  Rep.  1892,  pp.  199- 
210;  Ann.  Cyc,  1864,  pp.  480  et  seq. 


42    THE  CONSTITUTION  UNDER  LINCOLN 

limit.  "There  is  not  one  of  the  rights  of  war,"  said  he, 
"which  Congress  may  not  exercise ;  there  is  not  a  weapon 
in  its  terrible  arsenal  that  Congress  may  not  grasp."  ^^ 
Sumner's  contention  was  that  whatever  powers  are  to 
be  found  within  belligerent  rights  may  be  assumed  by 
Congress  during  war.  This  matter  was  threshed  out  in 
a  notable  debate  between  Sumner  and  Browning  of 
Illinois  in  the  Senate  on  June  25,  1862.2-*  Browning's 
contention  was  that  rights  of  war  were  not  legislative, 
but  executive;  and  that,  by  their  ver>'  nature,  questions 
of  military  necessity  were  to  be  decided  by  the  military 
commanders  acting  under  the  authority  of  the  Com- 
mander-in-Chief of  the  army.  Browning  agreed  that 
the  Government  of  the  L'nited  States  was  clothed  with' 
full  belligerent  powers  during  war,  but  he  insisted  that 
these  powers  were  confided  in  the  President,  who  was 
answerable  to  the  people,  whereas,  if  Congress  usurped 
power,  the  citizens,  he  maintained,  were  without  a 
remedy.  Browning  even  went  so  far  as  to  "defy  .  .  . 
any  man  to  point  to  one  single  word  ...  in  the  Con- 
stitution which  confers  upon  Congress  any  power  to  do 
any  act  in  the  exigency  of  war  which  it  cannot  do  in 
times  of  peace."  ^^ 

The  judicial  interpretation  of  this  question  lends  sup- 
port to  the  Sumner,  rather  than  the  Browning,  view. 
Full  powers  of  sovereigntj''  in  the  conduct  of  war  have 
been  conceded  by  the  courts  to  belong  to  the  national 
legislature.  Congress  has  the  power  to  provide  for  the 
conduct  of  war,  as  well  as  to  declare  war.-*  When  it 
comes  to  measures  to  be  taken  against  the  enemy,  the 

"Cong.  Globe,  37  Cong.,  2  sess.,  p.  2918. 

**Ibid.,  pp.  2917  et  seq. 

*^Ibid.,  p.  2923. 

**  "Of  course  the  power  to  declare  war  involves  the  power  to  prose- 
cute it  ...  in  any  manner  in  which  war  may  be  legitimately  prose- 
cuted."    (Miller  vs.  U.  S.,  78  U.  S.  305.) 


THE  WAR  POWERS  43 

limit  of  the  authority  of  Congress  is  to  be  found  only 
in  the  definition  of  "belligerent  powers."  It  has  been 
held  by  the  Supreme  Court  that  in  the  use  of  the  bel- 
Hgerent  powers,  Congress  is  not  bound  by  the  Fifth  and 
Sixth  Amendments  of  the  Constitution;  in  other  words, 
constitutional  guarantees  do  not  extend  to  the  enemy. 
In  this  connection,  a  distinction  has  been  drawn  be- 
tween "municipal  regulations,"  meaning  acts  relating  to 
the  nation's  own  citizens,  and  measures  taken  against 
the  enemy.-^ 

Only  with  regard  to  the  former  have  constitutional 
guarantees  been  held  to  apply.  When  we  consider, 
therefore,  the  powers  of  Congress  over  citizens  in  loyal, 
peaceful  communities  at  home,  we  have  the  Supreme 
Court's  authority  for  the  statement  that  the  hmitations 
of  the  Constitution  are  in  full  force  here.^^  If  the  ex- 
traordinary war  power  is  to  be  extended  over  citizens  in 
territory  outside  the  war  area  it  must  be  through  the 
power  of  Congress  to  suspend  the  habeas  corpus  privi- 
lege, and  to  institute  martial  law.  These  are  questions 
of  such  great  dispute  that  they  will  require  a  careful 
and  detailed  treatment  later;  but  in  passing  we  may 
note  that  the  decision  in  the  Milligan  case,  denying 
these  extraordinary  powers  over  districts  distant  from 
the  war,  was  pronounced  with  a  certain  hesitation  and 
tendency  to  waver,  and  that  four  of  the  justices  de- 
clared that,  if  Congress  had  deemed  it  expedient  to  set 
up  military  rule  in  such  territory  on  the  ground  of 
imminent  public  danger  (even  though  actual  threat  of 
invasion  might  be  wanting),  it  would  have  been  per- 
fectly competent  to  do  so. 

If  we  should  seek  to  enumerate  the  war  powers  exer- 
cised  by   Congress   during   the   sectional   struggle,    we 

"Ibid.,  pp.  304-305^ 

**  Ex  parte  Milligan,  4  Wall.  106. 


44    THE  CONSTITUTION  UNDER  LINCOLN 

would  find  that  they  included  the  confiscation  of  prop- 
erty; the  creation  of  special  war  crimes,  such  as  rebel- 
lion, conspiracy,  and  obstructing  the  draft;  the  raising 
of  an  armed  force  by  conscription,  including  even  aliens 
who  had  declared  their  intention  of  becoming  citizens; 
the  admission  of  the  newly  formed  state  of  West  Vir- 
ginia in  spite  of  widespread  doubt  as  to  the  constitu- 
tionality of  such  a  procedure;  the  approval  of  the 
President's  suspension  of  the  habeas  corpus  privilege,  as 
well  as  many  other  executive  acts  savoring  of  legisla- 
tion ;  the  taxation  of  the  enemy  by  the  use  of  an  unusual 
kind  of  "direct  tax"  which  enabled  particular  pieces  of 
real  estate  to  be  virtually  confiscated  by  the  United 
States;  the  protection  of  ofl&cers  committing  wrongs  by 
extending  immunity  for  acts  performed  under  the  Presi- 
dent's orders;  the  extension  of  the  jurisdiction  of  Fed- 
eral courts  so  as  to  permit  cases  involving  official 
immunity  to  be  transferred  from  State  to  Federal  tribu- 
nals; the  issuance  of  paper  money  with  the  legal  tender 
quality;  the  authorization  of  the  President  to  take 
possession  of  the  railroads  and  telegraph  lines  when  the 
public  safety  should  require  it,  and  numerous  other 
unusual  and  extraordinary  measures.  In  addition  to 
all  this,  Congress  broke  over  into  the  executive  field 
through  its  "Committee  on  the  Conduct  of  the  War" 
and  sought  to  exercise  control  even  over  military 
operations. 

In  this  enumeration  we  have  omitted  those  powers 
which  Congress  assumed  during  the  reconstruction 
period,  since  that  falls  outside  the  scope  of  this  book. 
If  we  chose  to  examine  these  reconstruction  measures, 
we  would  find  perhaps  the  most  far-reaching  powers 
that  Congress  ever  assumed,  including  the  creation  of 
a  military  regime  in  the  South  by  which  the  functions 
of  the  State  governments  were  superseded. 


THE  WAR  POWERS  45 


VI 


In  the  actual  use  of  the  war  powers,  great  circum- 
spection and  leniency  were  manifested  by  President 
Lincoln's  administration,  and  the  Government  showed 
a  wholesome  regard  for  individual  liberty.  There  was, 
for  instance,  no  such  invasion  of  private  rights  as  was 
involved  in  England's  Defense  of  the  Realm  Act  of 
1914,-^  while  the  comparison  with  military  government 
within  Germany  during  the  World  War  makes  the 
Union  administration  seem  mild  indeed.  It  is  true  that 
dangerous  possibilities  lurked  in  the  executive  ''suspen- 
sion of  the  writ";  that  civilians  were  made  prisoners  of 
state  by  the  thousand  without  judicial  process;  that 
some  of  the  Union  military  officers  out  of  touch  with 
Lincoln's  spirit  had  the  erroneous  notion  that  war  breaks 
down  the  rule  of  law  and  substitutes  the  rule  of  force; 
and  that  as  a  consequence  of  imperfect  central  control 
over  subordinate  officers  many  frivolous  arrests  were 
made  and  unwarranted  orders  executed.  The  alarm 
raised  by  such  an  agitator  as  Vallandigham  and  his 
"peace  party"  may  even  have  had,  here  and  there,  some 
justification.  Yet,  in  the  main,  the  limitations  of  gov- 
ernmental power  were  carefully  heeded,  so  carefully 
that  at  times  it  did  seem  that  war  was  actually  being 
conducted  in  vinculis,  which  may,  after  all,  be  the  best 
way  for  it  to  be  conducted. 

The  extreme  caution  regarding  emancipation  may 
serve  as  an  illustration.  Not  only  was  scrupulous  care 
exercised  to  place  the  whole  policy  frankly  on  the  basis 
of  the  war  power — i.e.,  the  authority  appropriate  to  the 
military  occupation   of  conquered  territory — ^but  even 

"Thomas  Baty  and  J.  H.  Morgan,  War:  lU  Conduct  and  Legal 
Results   (London,  1915). 


46    THE  CONSTITUTION  UNDER  LINCOLN 

the  power  so  restricted  was  not  fully  used,  several  im- 
portant sections  then  held  by  Union  arms  being  spe- 
cifically exempted  from  the  proclamation.  The  long 
delay  in  adopting  emancipation  and  the  Government's 
offer  of  compensation  in  the  case  of  slaves  freed  by  vol- 
untary State  action,  show  a  disposition  to  proceed  cau- 
tiously and  legally,  as  well  as  a  recognition  of  the  vested 
interests  involved. 

In  other  fields  also,  the  Government's  action  showed 
great  restraint.  Though  disloyal  newspapers,  such  as 
the  Columbus  (Ohio)  Crisis,  the  New  York  Daily  News, 
the  New  York  World,  and  many  others,  were  very  out- 
spoken in  their  denunciation  not  only  of  the  Govern- 
ment but  of  the  whole  Union  cause,  yet  respect  for  the 
"freedom"  of  the  press  was  show^n.  The  harmful  ac- 
tivity of  many  disaffected  journalists  was  tolerated,  and 
instances  of  suppression  were  not  sufficiently  numerous 
to  argue  a  general  repressive  policy.^" 

The  treatment  of  political  prisoners  was  mild,  and 
such  hardships  as  they  suffered  were  attributable  to  the 
prevailing  customs  in  prison  discipline,  most  of  which 
still  exist.  Often  the  release  of  individual  prisoners  was 
so  freely  ordered  as  to  seem  almost  capricious,  and  early 
in  1862  all  prisoners  of  state  were  released  from  mili- 
tary custody  by  a  sweeping  order,  an  oath  of  loyalty 
and  a  recognizance  being  the  only  terms  exacted.  Lin- 
coln's intention,  it  must  be  remembered,  was  often 
milder  than  that  of  his  officers.  In  the  case  of  Vallandig- 
ham,  for  instance,  there  is  good  evidence  that  he  would 
not  have  sanctioned  the  original  order  for  the  arrest  had 
the  matter  been  referred  to  him. 

In  the  punishment  of  those  who  committed  what 
might  be  called  "war  crimes,"  being  guilty  under  the  law 

•"This  subject  is  treated  in  Chapter  XIX. 


THE  WAR  POWERS  47 

of  "treason,"  "conspiracy,"  "obstructing  the  draft,"  and 
the  lilve,  action  was  decidedly  lax.  The  severer  measures 
were  not  carried  into  practical  execution.  The  Treason 
Act,  for  example,  was  not  enforced,  even  though  the 
penalty  for  this  crime  had  been  softened  from  death  to 
fine  and  imprisonment.  Another  severe  measure,  the  con- 
fiscation of  property,  was  but  lightly  applied. 

Everywhere  during  the  war  one  finds  this  tempering 
of  severe  rules.  Deserters  were  somehow  saved  from 
death;  orders  against  disloyal  persons  were  enforced 
with  discretion;  extenuating  circumstances  were  given 
weight;  escape  from  penalties  was  made  possible  by 
taking  the  oath  of  allegiance;  ignorance  of  the  law  was 
often  accepted  as  an  excuse;  first  ofi'enses  were  passed 
over;  and  spies  even  were  released  on  the  acceptance  of 
stipulated  terms.  The  Government,  moreover,  took  the 
people  into  its  confidence;  the  motives  back  of  war 
measures  were  frankly  avowed,  and  Lincoln  often  argued 
with  great  care  to  justify  the  use  of  unusual  powers. 
On  the  whole,  the  prosecution  of  this  grim  war  revealed 
a  democratic  regard  for  human  feeling  and  a  wholesome 
respect  for  individual  liberty.  When  one  reflects  how 
much  further  the  administration  could  have  gone  with 
popular  and  congressional  support,  and  when  one  recalls 
the  serious  proportions  of  Northern  disaffection,  execu- 
tive restraint  in  the  use  of  the  war  power  will  be 
considered  more  worthy  of  comment  than  individual 
instances  of  harshness. 

If  Lincoln  was  a  dictator,  it  must  be  admitted  that 
he  was  a  benevolent  dictator.  Yet  in  a  democracy  it  is 
a  serious  question  how  far  even  a  benevolent  dictator- 
ship should  be  encouraged. 


CHAPTER  III 

THE  LEGAL   NATURE  OF  THE    CIVIL  WAR 

I.  Legal  determination  of  the  dates  for  the  beginning 
and  ending  of  the  war 

II.  Controversy  concerning  the  presidential  "dictator- 
ship" 

III.  The  insurrectionary  theory  of  the  war 

IV.  The  concession  of  belligerent  rights  to  the  Confederacy 
V.  The  dual  character  of  the  war 


In  its  legal  characteristics,  the  war  of  the  States  pre- 
sents various  unique  features.  Unlike  a  foreign  war,  it 
began  without  a  declaration  or  "breach  of  relations," 
and  it  closed  without  a  treaty.  Conflicting  notions  ex- 
isted as  to  its  legal  nature,  and  no  single  theory  of  the 
war  was  exclusively  maintained  by  the  Union  Govern- 
ment. The  subject  will  be  somewhat  enlightened  if  the 
reader  will  bear  in  mind  that  war  brings  its  civil  conse- 
quences, and  that  a  "state  of  war"  on  the  civil  side  may 
be  discussed  apart  from  the  military  phases  of  the 
struggle.  Being  a  domestic  conflict,  yet  with  all  the 
proportions  of  a  foreign  war,  the  struggle  naturally 
engendered  legal  complications  which  would  be  con- 
fusing to  an  outside  observ^er.  As  in  the  Revolution, 
where  it  was  remarked  that  the  colonists  "took  up  arms 
against  a  preamble,"  much  attention  was  devoted  to 
matters  of  form,  and  many  things  were  done,  or  said, 
for  mere  theory's  sake.    As  a  consequence,  the  laws  and 

48 


LEGAL  NATURE  OF  THE  CIVIL  WAR      40 

the  debates  usually  sounded  extreme  and  harsh,  whereas 
the  actual  conduct  of  the  war  and  the  enforcement  of 
the  laws  was  greatly  tempered  by  practical  and  humane 
considerations.  The  fact  that  certain  rights  were 
claimed,  does  not  signify  that  they  were  exercised,  and 
it  is  necessary  to  distinguish  between  the  rights  that 
were  made  legally  available,  and  those  that  were 
enforced. 

Concerning  the  date  of  its  beginning,  the  war  pre- 
sented certain  legal  difficulties.  Neither  side  chose  to 
issue  a  declaration  of  war;  for,  according  to  the  South- 
em,  State-sovereignty  view,  secession  was  a  peaceable 
act,  while  by  the  Northern  theory  such  secession  was  a 
pretended  right  having  no  legal  effect  and  was  best 
resisted  by  the  maintenance  of  a  waiting  attitude,  with 
a  readiness  to  strike  back  in  case  any  overt  act  of  resist- 
ance to  national  authority  should  be  committed.  When 
one  remembers,  however,  the  legal  importance  of  the 
distinction  between  a  state  of  war  and  a  state  of  peace, 
not  only  in  domestic  but  also  in  international  aspects, 
the  necessity  of  fixing  some  legal  date  for  the  opening 
of  the  war  will  be  recognized.  War  and  peace  being 
antagonistic  legal  conditions  which  cannot  coexist,  some 
definite  point  of  time  had  to  be  selected  which  would 
mark  the  termination  of  the  one  and  the  beginning  of 
the  other. 

The  actual  fixing  of  such  a  time  rested  with  the  Presi- 
dent and  Congress,  but  the  judicial  department  found 
the  matter  of  such  importance  in  the  determination  of 
controversies  that  it  was  necessarily  called  upon  to 
defme  the  period  of  the  war.^  In  its  search  for  some 
public  act  to  mark  the  legal  opening  of  the  war,  the 
court   selected    the    President's    two   proclamations   of 

'Phillips  vs.  Hatch,  1  Dillon  571;  U.  S.  vs.  Anderson,  9  Wall.  56,  71. 


50     THE  CONSTITUTION  UNDER  LINCOLN 

blockade  (that  of  the  19th  of  April,  18G1,  applying  to 
South  Carohna,  Georgia,  Alabama,  Florida,  ^Mississippi, 
Louisiana  and  Texas;  and  that  of  April  27th  applying  to 
^'irginia  and  North  Carolina)  and  declared  that  these 
were  the  dates  at  which  the  legal  state  of  war  began  for 
the  States  concerned. 

Two  presidential  proclamations  were  also  held  to  have 
determined  the  legal  close  of  the  war:  the  proclamation 
of  April  2,  1866,  declaring  the  insurrection  to  be  at  an 
end  in  every  State  except  Texas,  and  the  final  proclama- 
tion of  August  20,  1866,  declaring  the  insurrection  to 
have  ceased  in  every  State.  It  will  thus  be  seen  that 
the  legal  termination  of  the  war  followed  about  a  year 
after  its  effective  termination  through  the  miUtary 
surrenders  of  Lee  and  Johnston.' 

'The  decision  aa  to  both  the  beginning  and  the  end  of  the  war  was 
made  in  the  case  of  the  Protector,  12  Wall.  700.  The  question  at  issue 
was  whether  an  appeal  from  a  decree  of  the  United  States  Circuit 
Court  for  Louisiana  should  be  allowed,  a  motion  having  been  brought 
from  the  United  States  Circuit  Court  for  the  southern  district  of  Ala- 
bama that  the  appeal  be  dismissed.  As  the  law  stood,  appeals  had 
to  be  brought  within  five  years  from  the  time  of  the  decree  com- 
plained of.  The  decree  in  this  case  was  rendered  April  5,  1861,  and 
the  appeal  taken  on  Maj^  17,  1871.  Since  the  statute  of  limitations 
did  not  run  during  the  "rebellion,"  it  was  neces.sary  for  the  court  to 
ascertain  the  exact  duration  of  the  war  in  order  to  determine  the 
period  to  be  deducted  in  calculating  the  amount  of  time  that  had 
elapsed.  The  court  decided  that  the  war  began  in  Alabama  on  April 
19,  1861,  and  ended  April  2,  1866.  It  was  thus  found  that,  disre- 
garding the  war,  more  than  five  years  had  elapsed,  and  the  appeal 
was  therefore  denied.  Several  points  in  this  decision  are  worth  noting: 
(1)  The  court  chose  the  proclamations  of  blockade  rather  than  the 
proclamation  calling  out  the  militia  as  the  opening  date.  (2)  It  was 
the  President's  act,  rather  than  any  act  of  Congress,  that  was  selected. 
The  minority  of  the  court,  however,  in  the  Prize  Cases,  thought  that 
the  war  legally  began  on  July  13,  1861,  when  Congress  recognized  the 
insurrection.  (3)  The  war  was  held  to  have  begun  in  different  States 
at  different  times.  Neither  of  the  above-mentioned  proclamations  of 
blockade  applied  to  Tennessee  or  Arkansas.  It  would  appear  that  the 
first  proclamation  declaring  an  insurrection  in  those  two  States  was 
that  of  August  16,  1861,  in  which  all  the  eleven  States  of  the  Con- 
federacy   were    declared    in    insurrection    and    commercial    intercourse 


LEGAL  NATURE  OF  THE  CIVIL  WAR       51 


II 

In  studying  the  legal  nature  of  the  war,  one  must  dis- 
tinguish two  elements  of  the  problem.  There  is  first 
the  controversy  concerning  the  manner  of  its  beginning, 
— whether  this  was  not  so  irregular  as  to  invaUdate 
the  "state  of  war"  as  a  legal  condition.  Secondly,  a 
vast  amount  of  discussion  centered  upon  the  question 
whether  the  conflict  was  a  public  war  or  a  mere  domestic 
insurrection. 

Taking  up  the  first  of  these  problems  we  find  that  the 
conflict  began  during  a  recess  of  Congress  and  that  for 
nearly  three  months  all  the  necessary  measures  of  re- 
sistance were  executive  acts,  performed  in  the  absence 
of  legislative  authorization.  To  that  extent  it  was  a 
"presidential  war."  Between  the  firing  at  Sumter,  April 
12,  1861,  and  the  assembling  of  Congress  on  July  4,  all 
the  measures  taken  to  protect  the  national  cause  and 
prosecute  the  war  against  the  Confederacy  were  taken 
by  or  upon  the  authority  of  the  President.  Some  of 
these  measures,  such  as  the  call  for  the  militia,  were  not 
likely  to  be  seriously  questioned  as  a  part  of  the  Presi- 

with  them  prohibited.  (4)  While  holding  that  the  President's  procla- 
mation of  blockade  served  to  mark  the  legal  beginning  of  the  war,  the 
court  held  elsewhere  (in  the  Prize  Cases)  that  the  President,  in 
proclaiming  the  blockade  and  doing  other  things  to  meet  the  emer- 
gency, was  not  creating  a  war,  but  was  merely  taking  measures  to 
protect  the  United  States  in  a  war  that  was  thrust  upon  the  Gov- 
ernment. The  few  days  between  the  firing  of  Confederate  guns  on 
Fort  Sumter  and  the  President's  proclamation  of  blockade  were  dis- 
regarded by  the  Supreme  Court  in  judicially  defining  the  opening 
date;  and  yet  in  the  Treaty  of  Washington  (concerning  wartime  claims 
against  Great  Britain)  the  commencement  of  the  war  was  fixed  at 
April  13,  1861.  For  a  legal  discussion  of  the  beginning  and  ending  of 
the  war,  see  House  Rep.  No.  262,  43  Cong.,  1  sess.,  pp.  2-3.  This 
document  gives  schedules  of  proclamations  by  Presidents  Lincoln  and 
Johnson  concerning  the  conditioA  of  the  insurgent  States  at  various 
times  from  1861  to  1866- 


UBRARV 

♦'ivFRsmr  OF  xamm 


52     THE  CONSTITUTION  UNDER  LINCOLN 

dent's  proper  functions,  but  certainly  the  enlargement 
of  the  army  and  navy  and  the  suspension  of  the  habeas 
corpus  privilege  were  open  to  grave  doubts,  while  the 
proclamations  of  blockade  were  widely  regarded  as  un- 
warranted. In  referring  to  his  proclamation  of  May  4, 
1861,  calling  for  enlistments  in  the  regular  army  far 
beyond  the  existing  legal  limits,  Lincoln  himself  frankly 
admitted  that  he  had  overstepped  his  authority.^  It 
was  such  acts  as  these  that  gave  rise  to  the  charge  of 
"military  dictatorship,"  and  this  charge  seemed  to  gain 
weight  from  the  President's  deliberate  postponement  of 
the  special  session  of  Congress  until  July  4,  though  the 
call  for  such  session  was  issued  on  April  15. 

The  alleged  "unconstitutionality"  of  this  conduct  of 
President  Lincoln  was  urged  as  a  leading  argument  by 
those  who  contended  that  the  whole  process  by  which 
the  "war"  began  was  illegal.  This  matter  was  elabor- 
ately threshed  out  before  the  Supreme  Court  in  the 
Prize  Cases."^  Certain  ships  had  been  captured  for  vio- 
lating the  President's  blockade  proclamations  of  April 
19  and  27  and  in  the  contentions  as  to  the  lawfulness 
of  these  prizes  the  whole  issue  of  the  legality  of  the  war 
in  its  early  stages  was  drawn  into  controversy.^    War,  it 


'  Nicolay  and  Hay,  Works,  VI,  308. 

*67  U.  S.  635. 

'Charles  Warren,  the  able  historian  of  the  Supreme  Court,  em- 
phasizes the  far-reaching  political  importance  of  the  decision  in  the 
Prize  Cases.  In  this  connection  he  quotes  R.  H.  Dana,  Jr.,  who  pri- 
vately wrote  in  1863:  "In  all  States  but  ours  .  .  .  the  function  of 
the  judiciar>'  is  to  interpret  the  acts  of  the  Government.  In  ours  it 
is  to  decide  their  legality.  .  .  .  Contemplate  ...  the  possibility  of  a 
Supreme  Court  deciding  that  this  blockade  is  illegal!  ...  It  would 
end  the  war,  and  how  it  would  leave  us  with  neutral  powers,  it  is 
fearful  to  contemplate!  .  .  .  The  .  .  .  contemplation  of  such  a  possi- 
bility makes  us  pause  in  our  boastful  assertion  that  our  written  Con- 
stitution is  clearly  the  best  adapted  to  all  exigencies,  the  last,  best 
gift  to  man."  (Charles  Warren,  The  Supreme  Court  in  United  States 
History,   III,    104.) 


LEGAL  NATURE  OF  THE  CIVIL  WAR       53 

was  argued,  must  begin  with  a  declaration;  Congress 
alone  has  the  power  of  declaring  war;  the  President's 
power  of  suppressing  an  insurrection  is  not  tantamount 
to  the  war  power;  and  his  right  to  promulgate  a  blockade 
order  becomes  valid  only  after  war  has  become  a  legal 
fact  through  a  congressional  declaration.  War,  there- 
fore, did  not  lawfully  exist,  it  was  said,  when  these  early 
captures  were  made;  hence  there  could  be  no  vaUd 
blockade  and  no  prize  jurisdiction  in  the  Federal  courts. 
As  was  naturally  to  be  expected,  these  arguments 
were  brushed  aside,  and  the  court  upheld  the  legality 
of  the  war  from  the  time  of  the  President's  blockade 
orders,  sustaining  fully  the  executive  acts  taken  during 
the  legislative  recess. 

A  civil  war  [said  the  court]  is  never  solemnly  declared;  it 
becomes  such  by  its  accidents — the  number,  power,  and  or- 
ganization of  the  persons  who  originate  and  carry  it  on.  When 
the  party  in  rebelUon  occupy  and  hold  in  a  hostile  manner  a 
certain  portion  of  territory;  have  declared  their  independence; 
have  cast  off  their  allegiance;  have  organized  armies;  have 
commenced  hostilities  against  their  former  sovereign,  the  world 
acknowledges  them  as  belligerents  and  the  contest  is  war. 
They  claim  to  be  in  arms  to  establish  their  liberty  and  inde- 
pendence in  order  to  become  a  sovereign  state,  while  the  sov- 
ereign party  treats  them  as  insurgents  and  rebels  who  owe  alle- 
giance and  should  be  punished  with  death  for  their  treason. 
...  As  a  civil  war  is  never  publicly  proclaimed  eo  nomine 
against  insurgents,  its  actual  existence  is  a  fact  in  our  domestic 
history  which  the  court  is  bound  to  notice  and  to  know. 

Turning  to  the  President's  acts.  Justice  Grier,  speak- 
ing for  the  majority  of  the  court,  declared  that  while 
the  President  does  not  initiate  war,  he  must  resist  force 
by  force.  Domestic  rebellion  may  be  war,  and  war  may 
be  unilateral.    Here  he  quoted  Lord  Stowell  that  "war 


54     THE  CONSTITUTION  UNDER  LINCOLN 

may  exist  without  a  declaration  on  either  side.®  ...  A 
declaration  of  war  by  one  country  alone  is  not  a  mere 
challenge  to  be  accepted  or  refused  at  pleasure  by  the 
other."  The  President,  Grier  maintained,  was  bound  to 
meet  the  war  in  the  shape  it  presented  itself  "without 
waiting  for  Congress  to  baptize  it  with  a  name."  For- 
eign powers,  he  pointed  out,  had  recognized  the  struggle 
to  be  war,  and  it  was  unreasonable  to  ask  the  court  "to 
affect  a  technical  ignorance  of  a  war  which  all  the  world 
acknowledges  to  be  the  greatest  civil  war  known  in  all 
the  history  of  the  human  race."  On  the  basis  of  this 
reasoning  the  court  held  that  a  state  of  war  legally 
existed  at  the  time  of  the  President's  blockade  orders  in 
April,  1861,  and  that  such  blockade  orders  were  valid. 

It  is  a  significant  fact  that  four  judges  out  of  nine, 
including  the  Chief  Justice,  dissented  from  this  opinion. 
The  grounds  of  their  dissent  were  that  the  legal  change 
from  peace  to  war  profoundly  affects  private  relations; 
that  a  declaration  is  necessary;  that  a  civil  war  must 
be  recognized  by  the  war-making  power  within  the  Gov- 
ernment; that  the  President's  power  to  deal  with  an 
insurrection  (being  an  exercise  of  power  under  the  mu- 
nicipal laws  of  the  country,  not  under  the  law  of  nations) 
is  by  no  means  equivalent  to  the  war  power,  and  that 
Congress  alone  has  the  power  of  declaring,  or  legally 
recognizing,  war.  According  to  the  dissenting  view,  the 
act  of  Congress  of  July  13,  1861,  which  recognized  a 
state  of  war  as  between  the  Government  of  the  United 
States  and  that  of  the  Confederate  States,  was  the  legal 
beginning  of  the  war,  and  captures  before  that  date 
were  invalid. 

It  will  be  noticed  that  the  point  on  which  the  court 
divided  was  as  to  the  existence  of  a  legal  state  of  war 

•1  Dodson  247. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       55 

between  April  and  July.  The  whole  court  agreed  that 
from  July  13,  1861,  when  Congress  oflBicially  recognized 
a  state  of  war,  the  President  became  invested  with  the 
war  power,  and  the  legal  concomitants  of  a  state  of  war 
were  in  force.  They  divided,  with  the  Chief  Justice  in 
the  minority,  on  the  question  of  the  President's  power 
and  of  the  legality  of  the  war  before  that  time. 

One  of  the  fundamental  points  covered  in  this  im- 
portant decision  was  the  legal  effect  of  the  action  of 
Congress  approving  the  President's  war  measures.  The 
language  of  the  act  in  which  Congress  ratified  the  Presi- 
dent's acts  is  as  follows:  '^ 

.  .  .  be  it  .  .  .  enacted,  That  all  the  acts,  proclamations, 
and  orders  of  the  President  .  .  .  [after  March  4,  1861]  re- 
specting the  army  and  navy  of  the  United  States,  and  calling 
out  or  relating  to  the  militia  or  volunteers  from  the  States, 
are  hereby  approved  and  in  all  respects  legalized  and  made 
valid  ...  as  if  they  had  been  issued  and  done  under  the  pre- 
vious express  authority  and  direction  of  the  Congress  of  the 
United  States. 

What  was  the  force  of  this  subsequent  ratification  of 
acts  which  many  claimed  to  be  unconstitutional?  Hav- 
ing held  that  the  President's  course  in  meeting  the 
emergency  with  warlike  measures  was  entirely  legal  in 
itself,  the  court  was  under  the  necessity  of  proceeding 
circumspectly  in  dealing  with  a  legislative  provision 
which  seemed  to  imply  some  defect  in  the  measures 
taken  by  the  executive,^  and  which  was  denounced  as 

'Act  of  Aug.  6,  1861  "to  increase  the  Pay  of  the  Privates  in  the 
Regular  Army  and  .  .  .  Volunteers  in  the  Service  of  the  United  States, 
and  for  other  Purposes,"  sec.  3.     (U.  S.  Stat,  at  Large,  XII,  326.) 

*  Senator  Sherman,  while  vindicating  the  President,  assumed  that  his 
acts  were  illegal.  "I  am  going  to  vote,"  he  said,  "for  the  resolution 
[to  approve  and  confirm  the  President's  acts],  and  I  am  going  to 
vote  for  it  upon  the  assumption  that  the  different  acts  of  the  Admin- 
istration recited   in   this  preamble   were   illegal.  ...  I  am  willing   to 


56     THE  CONSTITUTION  UNDER  LINCOLN 

creating  a  war  "ex  post  facto."  The  counsel  for  the 
claimants  of  the  vessels  refused  to  recognize  the  prin- 
ciple of  a  retroactive  legalization  of  the  presidential 
proclamation  of  blockade.  Such  a  principle  they  de- 
clared to  be  entirely  out  of  harmony  with  the  theory 
of  our  government ;  for  it  would  make  the  President  the 
"impersonation  of  the  country,"  would  erect  a  dictator- 
ship, and  would  put  constitutional  government  at  an 
end  whenever  the  President  should  think  that  the  life 
of  the  nation  was  in  danger. 

The  Supreme  Court  upheld  this  ratifying  measure, 
but  at  the  same  time  prudently  refused  to  admit  that 
it  was  necessary.  "If  it  were  necessary  to  the  technical 
existence  of  a  war  that  it  should  have  a  legislative  sanc- 
tion," said  the  court,  "we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  .  .  .  1861,  .  .  . 
and  finally,  ...  we  find  Congress  .  .  .  passing  an  act 
'approving,  legalizing  and  making  valid  all  the  acts  .  .  . 
of  the  President,  as  if  they  had  been  issued  and  done 
.  .  .  under  the  previous  express  authority  and  direction 
of  the  Congress.'  "^  The  position  of  the  court  w^as  that 
there  was  no  defect  in  the  action  of  the  President,  but 
that,  if  such  a  defect  had  existed,  this  subsequent  legis- 
lation of  Congress  would  have  sufficed  to  cure  it. 

It  would  perhaps  be  a  mistake  to  spin  out  an  academic 
discussion  of  all  that  seems  to  be  implied  in  this  portion 
of  the  decision  in  the  Prize  Cases.  Had  there  been  a 
defect  in  the  measures  adopted  by  the  President,  said 
the  court,  the  later  action  of  Congress  would  have  cured 
it.    This  would  seem  to  mean  that  the  President  may  do 


make  them  as  legal  and  valid  as  if  they  had  the  previous  sanction  of 
Congress."  (Quoted  in  Upton,  Military  Policy  oj  the  United  States, 
231.) 

'67  U.  S.  670-671.     (In  the  text  of  the  decision  the  italics  are  used 
as  above,  but  the  quotation  marks  are  employed  loosely.) 


LEGAL  NATURE  OF  THE  CIVIL  WAR       57 

illegal  things,  things  quite  beyond  the  scope  of  his 
power;  and  yet,  in  case  these  acts  are  within  the  legisla- 
tive power,  Congress  is  competent  to  cover  them  with 
the  mantle  of  legality.  The  decision  does  not  quite 
imply  all  this.  The  significant  thing  is  that  the  court 
did  not  consider  that  the  President  had  exceeded  his 
power.  Had  they  so  decided,  and  then  proceeded  to 
interpret  the  subsequent  ratification  of  Congress  as  cur- 
ing all  illegality,  the  decision  would  have  had  a  very 
far-reaching  effect  indeed,  and  would  have  seemed  to 
legitimize  a  dictatorship  analogous  to  that  of  Bismarck 
from  1862  to  1866,  when  parliamentary  life  in  Prussia 
was  suspended  and  an  army  budget  was  carried  through 
by  the  king  and  the  upper  house  against  the  opposition 
of  the  popular  branch  of  the  legislature.  It  should  be 
noted  that,  according  to  the  court's  view.  President 
Lincoln  had  not  initiated  a  war,  but  had  taken  measures 
to  resist  a  war  that  was  thrust  upon  the  Government, 
and  that  it  was  his  duty  to  do  so.  In  evaluating  the 
significance  of  a  court  decision,  the  fair  method  is  to 
note  above  all  what  the  court  holds,  and  not  to  place 
undue  stress  upon  what  may  be  implied  in  the  secondary 
arguments  by  which  the  court  amplifies  its  opinion. 
What  the  Supreme  Court  held  in  the  Prize  Cases  was 
that  war  legally  existed  in  spite  of  the  fact  that  Con- 
gress had  not  acted,  and  that  the  blockade  was  legal. 
The  decision  should  be  interpreted  in  view  of  these  pro- 
nouncements; and  any  form  of  refined  comment  which 
would  elaborate  all  the  asides  and  parentheses  of  the 
decision  is  likely  to  lead  to  mistaken  conclusions.  To 
say  that  the  decision  upheld  the  principle  of  presidential 
dictatorship  would  be  incorrect. 

This  question  of  the  dictatorship,  however,  should  not 
be  passed  over  lightly,  and  some  of  Lincoln's  arguments 
in  his  own  defense  may  have  gone  beyond  the  limits 


58     THE  CONSTITUTION  UNDER  LINCOLN 

which  sound  legal  reasoning  would  recognize.  Lincoln's 
defense  was  two-fold:  first,  that  the  national  safety  im- 
peratively demanded  that  these  vigorous  measures  be 
taken;  and  second  (and  here  is  the  doubtful  part),  that 
as  he  had  not  exceeded  the  power  of  Congress,  he  sup- 
posed that  all  would  be  made  right  by  subsequent  legis- 
lative approval.^^  Lincoln's  course  was  undoubtedly 
patriotic,  capable,  and  forceful,  for  which  reasons  it  has 
been  generally  applauded;  and  yet  it  argues  a  curious 
commingling  of  legislative  and  executive  functions  for  a 
President  to  perform  an  act  which  he  adjudges  to  be 
within  the  competence  of  Congress  and  then,  when  the 
measure  has  been  irrevocably  taken,  to  present  Congress 
with  an  accomplished  fact  for  its  subsequent  sanction. 
For  not  only  is  there  the  well-known  principle  that  a 
legislature  may  not  delegate  legislative  powere,  but  the 
possession  of  a  constitutional  power  implies  the  right  to 
withhold  as  well  as  the  right  to  perform  it.  In  other 
words,  when  a  certain  branch  of  the  Government  is 
given  an  optional,  not  a  mandatory,  power,  it  is  thereby 
given  full  discretion  to  decide  whether  or  not  the  power 
shall  be  used;  and  if  the  decision  is  in  the  affirmative  it 
has  discretion  as  to  the  circumstances,  the  extent,  and 
the  method  of  its  use.  This  much  of  legislative  discre- 
tion is  entirely  denied  when  Congress  is  confronted  with 
an  accomplished  fact  for  its  approval. 

Though  Lincoln's  acts  have  not  generally  been  re- 
garded as  an  abuse  of  power,  yet  jurists  would  probably 
agree  that  the  exercise  of  legislative  power  by  an 
executive  officer  in  anticipation  of  subsequent  ratifica- 

^'''These  measures,  whether  strictly  legal  or  not,  were  ventured 
upon,  under  what  appeared  to  be  a  popular  demand  and  a  public  neces- 
sity; trusting  .  .  .  that  Congress  would  readily  ratify  them.  It  is 
believed  that  nothing  has  been  done  beyond  the  constitutional  com- 
petency of  Congress."  (Lincoln,  in  message  to  Congress  in  special 
session,  July  4,  1861 :     Nicolay  and  Hay,  Works,  VI,  308.) 


LEGAL  NATURE  OF  THE  CIVIL  WAR       59 

tion  of  his  acts  is  a  bad  practice.  A  President  is  often 
reluctant  to  have  a  Congress  "on  his  hands"  in  time  of 
grave  emergency,  and  for  this  very  reason  it  might  be 
dangerous  to  our  democratic  institutions  to  attach  too 
much  weight  to  the  Lincoln  precedent  of  1861.  The 
whole  proceeding  savors  too  much  of  "forcing  the  hand" 
of  the  legislature,  and  the  fact  that  President  Lincoln 
could  adopt  this  irregular  course  in  such  a  way  as  to 
avoid  offense,  does  not  argue  that  this  sort  of  conduct 
is  essentially  sound.  The  matter  becomes  even  more 
serious  when  it  is  remembered  that  in  such  cases  the 
Supreme  Court  is  hardly  an  effective  barrier  against 
executive  usurpation.  Questions  of  this  sort  are  politi- 
cal and  by  their  very  nature  they  create  a  situation  in 
which  the  attitude  of  the  court  is  necessarily  that  of 
acquiescence. 

Ill 

Having  noted  the  controversy  concerning  the  execu- 
tive measures  taken  at  the  outset  of  the  war,  we  are  now 
led  to  inquire  into  the  legal  character  of  the  conflict 
itself.  Was  it  a  domestic  uprising  by  mere  insurgents 
who  owed  allegiance  to  the  sovereign  power  whose 
authority  they  were  endeavoring  to  overthrow,  or  was 
it  a  public  war  between  recognized  belligerents?  In 
other  words,  was  the  struggle  a  clash  between  govern- 
ments, or  was  it  a  conflict  waged  by  a  combination  of 
individuals  against  their  government? 

The  legal  bearings  of  this  problem  were  far-reaching. 
Upon  its  solution  depended  the  Government's  official 
attitude  toward  the  Confederate  States.  The  decision  as 
to  whether  belligerent  powers  should  be  accorded  to  the 
Southern  Government  was  involved,  and  this  would  in- 
evitably engender  foreign  difficulties  in  case  other  nations 


60     THE  CONSTITUTION  UNDER  LINCOLN 

should  adopt  a  theory  of  the  war  at  variance  with  the 
theory  of  the  Washington  Government.  The  propriety 
of  various  acts  of  the  President  would  be  involved  also, 
for  the  President's  powers  and  duties  m  case  of  insur- 
rection are  different  from  those  which  obtain  in  time 
of  recognized  war.  Many  other  questions  would  be 
involved:  the  treatment  of  captured  "insurgents"  as 
criminals  instead  of  prisoners  of  war;  the  possible  pun- 
ishment of  such  "insurgents"  as  traitors,  and  the  con- 
fiscation of  their  property;  the  use  of  the  municipal 
power  over  the  territory  claimed  by  the  insurgents  when 
such  territory  should  be  captured;  the  legality  of  Con- 
federate captures  at  sea,  and  the  disposition  to  be  made 
of  the  crews  of  Confederate  warships  and  privateers. 
The  decision  of  these  and  other  important  issues  de- 
pended upon  the  fundamental  principle  that  should  be 
adopted  as  to  what  the  existing  conflict  was  in  its  legal 
character. 

Insurrection,  it  will  be  readily  recognized,  is  not  the 
same  as  war.  There  are  varying  degrees  of  disturbances 
with  which  a  government  may  be  confronted:  riot,  in- 
surrection; rebellion;  civil  war.  A  riot  is  a  minor  dis- 
turbance of  the  peace  which  is  perpetrated  by  a  mob. 
An  insurrection  is  an  organized  armed  uprising  w^hich 
seriously  threatens  the  stability  of  government  and  en- 
dangers social  order.  An  insurgent  has  been  defined  as 
"one  who  in  combination  with  others  takes  part  in  active 
and  forcible  opposition  to  the  constituted  authorities, 
where  there  has  been  no  recognition  of  belligerency."  ^^ 
Insurrection  is  distinguished  from  rebellion  in  that  it  is 
less  extensive  and  its  political  and  military  organization 

"Bouvier,  Law  Dictionary.  See  also  U.  S.  vs.  Fries,  9  Fed.  Cas.  826; 
Prize  Cases,  67  U.  S.  635;  U.  S.  vs.  Smith,  27  Fed.  Cas.  1134;  Charge  to 
Grand  Jury,  30  Fed.  Cas.  997;  U.  S.  vs.  100  Barrels  of  Cement,  27 
Fed.  Cas.  292;  65  Ivy.  296. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       61 

is  less  highly  developed.  The  term  insurrection  would 
be  appropriate  for  a  movement  directed  against  the 
enforcement  of  particular  laws,  while  the  word  rebellion 
denotes  an  attempt  to  overthrow  the  government  itself, 
at  least  in  a  particular  part  of  the  country.  War  is  a 
conflict  conducted  between  recognized  belligerents.  It 
has  been  defined  as  ''that  state  in  which  a  nation  prose- 
cutes its  right  by  force."  ^^  The  essential  fact  is  that 
war  is  not,  legally,  a  coercion  of  individuals.  It  is  a 
condition  in  which  individuals  are  relieved  from  respon- 
sibility for  acts  that  would  otherwise  be  criminal — a 
condition  in  which  force  is  exerted  either  between 
established  nations  or  between  organized  groups  whose 
character  as  belligerent  powers  is  conceded.  A  nation 
does  not  claim  the  municipal  power  over  its  enemies  in 
a  public  war,  but  it  does  assert  that  claim  in  the  case  of 
insurrection  or  rebellion. 

Not  only  must  this  distinction  between  insurrection 
and  war  in  general  be  recognized,  but  certain  factors 
should  be  noted  which  are  incidental  to  insurrection  as 
it  has  come  to  be  treated  in  the  United  States.  Insur- 
rection in  this  country  constitutes  treason.  It  is  true 
that  insurrection,  strictly  speaking,  is  not  war;  but  our 
courts  have,  in  connection  with  the  question  of  treason, 
expanded  the  phrase  "levying  war"  to  include  organized, 
forcible  resistance  to  the  Government. ^^  It  should  also 
be  remembered  that  the  American  President  has  certain 
peculiar  and  specific  powers  which  come  into  being  at 
the  time  of  an  insurrection.  The  President  may  not 
declare  war,  but  he  may  proclaim  the  existence  of  a 
rebellion  or  insurrection,  and  in  doing  so  he  determines, 
entirely  on  his  own  discretion,  whether  an  insurrection 


"Grier,  in  Prize  Cases,  67  U.  S.  635,  666. 

"U.  S.  vs.  Vigol,  U.  S.  vs.  Mitchell,  2  Dall.  346,  348.    See  infra,  p.  76. 


62     THE  CONSTITUTION  UNDER  LINCOLN 

exists.  He  creates  the  legal  state  of  insurrection,  and 
when  he  has  declared  the  insurrection  to  exist,  the  courts 
will  accept  his  action  in  the  matter  as  conclusive  and 
binding  upon  them.^*  When  the  existence  of  rebeUion 
or  insurrection  has  thus  been  estabhshed,  the  President 
has  the  constitutional  authority  to  call  out  the  militia 
for  its  suppression.  He  then  becomes  the  Commander- 
in-Chief  of  the  mihtia  thus  summoned.  Moreover,  it 
has  been  strongly  urged  that,  in  case  of  rebellion,  the 
President  may  suspend  the  habeas  corpus  privilege. 
This  suspension  carries  with  it  very  sweeping  powers 
over  the  districts  in  which  the  suspension  applies,  for 
officials  acting  under  the  authority  of  the  President  may 
then  make  arrests  without  warrant  for  offenses  undefined 
in  the  laws,  without  having  to  answer  for  such  acts  before 
the  regular  courts. 

It  was  therefore  a  matter  of  considerable  legal  signifi- 
cance that,  from  the  standpoint  of  the  Government  at 
Washington,  the  Civil  War  began  as  an  "insurrection." 
The  execution  of  the  laws,  as  Lincoln  proclaimed,  was 
obstructed  "by  combinations  too  powerful  to  be  sup- 
pressed by  the  ordinary  course  of  judicial  proceedings."  ^^ 
This  was  the  administration  theory  in  a  nutshell.  The 
Government  had  to  deal  not  with  an  independent  power, 
not  even  with  States,  but  with  unauthorized  individuals 
who  had  combined  to  resist  the  laws.  Nor  did  the  tre- 
mendous proportions  of  the  war  dislodge  this  theory 
from  the  minds  of  those  in  direction  of  affairs;  for  long 
after  the  guns  at  Sumter  had  united  the  South  in  solid 
array,   the  administration   still  spoke  of  the  Southern 


"f/.  S.  Constitution,  Art.  IV,  sec.  4;  Act  of  Feb.  28,  1795,  U.  S. 
Stat,  at  Large,  I,  424;  Act  of  Mar.  3,  1807,  ibid.,  II,  443;  Luther 
vs.  Borden  et  al.,  7  How.  1. 

"  Proclamation  of  Apr.  15,  1861 :  Richardson,  Messaffes  .  .  .  of  the 
Presidents,  VI,  13. 


LEGAL  NATURE  OF  THE  CIVIL  WAR      63 

movement  as  an  "insurrection,"  a  "rebellion,"  or  a  "pri- 
vate combination  of  persons."  This  theory  of  the  war 
as  an  insurrection  was  thus  stated  by  the  Supreme 
Court:  "The  rebellion  out  of  which  the  war  grew  was 
without  any  legal  sanction.  In  the  eye  of  the  law,  it 
had  the  same  properties  as  if  it  had  been  the  insurrection 
of  a  county  or  smaller  municipal  territory  against  the 
State  to  which  it  belonged.  The  proportions  and  dura- 
tion of  the  struggle  did  not  afifect  its  character."  ^® 

As  a  further  illustration  of  the  insurrection  theory, 
the  meticulous  care  on  the  part  of  the  Union  Govern- 
ment to  avoid  any  act  remotely  suggestive  of  a  recogni- 
tion of  the  "Confederate  States  of  America,"  will  be 
recalled.  When  the  commissioners  appointed  by  the 
Confederate  President  in  conformity  with  a  resolution 
of  the  Confederate  Congress,  sought  audience  with  Sec- 
retary Seward  in  March,  1861,  in  order  to  settle  "all 
matters  between  the  States  forming  the  Confederacy  and 
their  other  late  confederates  of  the  United  States  in 
relation  to  the  public  property  and  the  public  debt," 
they  were  neither  received  in  person  nor  officially  rec- 
ognized by  the  Secretary  of  State  (not  even  as  repre- 
sentatives of  a  de  facto  government),  and  the  intercourse 
which  took  place  between  them  and  the  administration 
consisted  of  memoranda  placed  "on  file"  for  their  pe- 
rusal, or  of  indirect  and  misleading  interchanges  through 
unauthorized  go-betweens.  ^"^  A  wholly  unreasonable  re- 
sentment was  felt  against  England  at  the  time  of  the 
Queen's  proclamation  of  neutrality,  because  the  view 
prevailed  at  Washington  that  foreign  powers  ought  to 


"Hickman  vs.  Jones  et  al.,  9  Wall,  197,  200. 

"  Justice  J.  A.  Campbell's  memorandum  entitled  "Facts  of  History" 
is  a  source  concerning  these  unofficial  communications.  (H.  G.  Connor, 
John  Archibald  Campbell,  122  et  seq.;  Jefferson  Davis,  Constitutionalist, 
ed.  by  Dunbar  Rowland,  V,  85  et  seq.) 


64     THE  CONSTITUTION  UNDER  LINCOLN 

regard  the  struggle  as  merely  domestic  and  the  Southern 
"insurgents"  should  not  be  given  the  dignity  of  belliger- 
ents.^® When  Napoleon  III  of  France  formally  pro- 
posed "mediation"  between  the  United  States  and  the 
Confederate  States,  Secretary  Seward  uttered  an  indig- 
nant though  respectful  protest/®  while  Congress  echoed 
his  sentiments  in  a  resolution  which  denounced  such 
mediation  as  foreign  "interference,"  and  declared  that 
any  further  attempt  in  the  same  direction  would  be 
deemed  "an  unfriendly  act."  -**  Concerning  the  ex- 
change of  prisoners,  as  in  all  matters  suggesting  oflBcial 
relations  with  the  Confederate  States,  there  was  an 
excessive  wariness  on  the  part  of  the  Union  Government 
which  left  this  important  question  in  an  unsatisfactory 
shape.  On  those  occasions  during  the  war  when  the 
question  of  negotiating  for  terms  of  peace  with  the 
Southern  Government  presented  itself,  President  Lin- 
coln, while  manifesting  generosity  on  collateral  points, 
carefully  avoided  any  recognition  of  the  Confederacy 
and  invariably  imposed  a  condition  which  amounted  to 
surrender — i.e.,  the  complete  reunion  of  the  warring 
States  with  the  North.  It  was  for  this  reason  that  these 
attempted  negotiations,  notably  the  Hampton  Roads 
Conference,  ended  in  failure.  Thus  throughout  the  war, 
all  recognition  of  authority  was  denied  to  the  Confed- 
eracy, and  in  the  Northern  official  view  it  remained  the 

"Seward  to  C.  F.  Adams,  June  3,  1861:     Dipl.  Corr.,  1861,  p.  97. 

"  "The  United  States  cannot  .  .  .  allow  the  French  government  to 
rest  under  the  delusive  belief  that  they  will  be  content  to  have  the 
Confederate  States  recognized  as  a  belligerent  power.  .  .  .  No  media- 
tion could  modify  in  the  least  degree  the  convictions  .  .  .  under  which 
this  government  is  acting."  Seward  to  Dayton,  Maj'  30,  1861.  {Dipl. 
Corr.,  1861,  p.  215;  The  Diplomatic  History  of  the  War  for  the  Union, 
being  the  Fifth  Volume  of  the  Works  of  W.  H.  Seward,  ed.  by  G.  E. 
Baker,  259.  For  later  dispatches  on  the  same  subject,  see  ibid.,  pp.  359 
et  scq.;  376-381.) 

"Cong.  Globe,  Mar.  3,  1863,  37  Cong.,  3  sess.,  p.  1360. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       65 

"pretended  government"  of  the  "so-called  Confederate 
States  of  America." 

IV 

To  leave  the  discussion  here,  however,  would  give  a 
misleading  idea  as  to  the  actual  treatment  given  to  the 
Confederacy.  It  was  not  contemplated  that  the  full  con- 
sequences of  the  insurrectionary  theory  should  be  car- 
ried out,  and  side  by  side  with  this  theory  one  finds  a 
more  reasonable  attitude  which  allowed  belligerent 
rights  to  the  Southern  Government. 

The  practical  and  humanitarian  aspects  of  the  ques- 
tion were  of  primary  importance  here.  As  Justice  Clif- 
ford declared,  "Should  the  sovereign  conceive  that  he 
has  a  right  to  hang  up  his  prisoners  as  rebels,  the  oppo- 
site party  will  make  reprisals.  .  .  .  Should  he  bum  and 
ravage,  they  will  follow  his  example,  and  the  war  will 
become  cruel,  horrible,  and  in  every  way  more  destruc- 
tive to  the  nation."  ^^ 

An  attempt  was  made  early  in  the  war,  before  the 
policy  of  the  Government  had  matured,  to  treat  Con- 
federate naval  officers  and  seamen  as  pirates,  and  this 
of  course  involved  the  death  penalty.  President  Lin- 
coln's proclamation  of  April  19,  1861,  declared  the  crews 
and  officers  of  Confederate  naval  vessels,  and  of  vessels 
operating  under  letters  of  marque  issued  by  the  Con- 
federacy, to  be  guilty  of  piracy;  and,  in  protesting 
against  the  British  proclamation  of  neutrality,  one  of 
the  points  strongly  urged  by  Secretary  Seward  was  that 
the  recognition  of  belligerency  would  preclude  attaching 
the  piratical  character  to  Confederate  ships. 

But  from  every  standpoint  it  was  found  impolitic  and 
indeed  impossible  to  carry  out  this  policy  of  punishing 

"Clifford,  in  Ford  vs.  Surget,  97  U.  S.  613. 


66     THE  CONSTITUTION  UNDER  LINCOLN 

for  piracy  those  who  were  in  the  Confederate  service. 
It  is  thoroughly  recognized  in  international  law  that 
those  who  operate  at  sea  under  the  authority  of  an 
organized  responsible  government  observing  the  rules  of 
war  may  not  be  treated  as  pirates.--  Internationally, 
the  Confederacy  was  a  recognized  belligerent,  and  to 
have  its  ships  deemed  piratical  under  the  jus  gentium 
was  entirely  out  of  the  question.  To  treat  them  as 
pirates  under  the  municipal  law  was  practically  equiva- 
lent to  treating  them  as  traitors,  and,  as  we  shall  see 
when  we  come  to  discuss  the  subject  of  treason,  the 
Union  Government  never  carried  its  treason  theory  into 
actual  practice  as  against  those  acting  under  the  official 
authority  of  the  Confederacy.  Besides,  when  it  became 
known  that  Southern  privateersmen  were  being  held  for 
piracy,  retaliation  was  at  once  threatened,  and  certain 
Union  captives  were  selected  as  hostages,  on  whom  the 
Richmond  Government  intended  to  retaliate  in  case  the 
Federals  should  actually  prosecute  the  piracy  charge. 

There  was  but  one  thing  to  do  with  the  captured 
crews — to  treat  them  as  prisoners  of  war — and  this 
course  was  adopted.  In  this  matter,  therefore,  the  bel- 
ligerency of  the  South  was  virtually  conceded,  and  this 
concession  of  belligerent  rights  was  naturally  extended 
to  other  matters  connected  with  the  prosecution  of  the 
war. 

The  refusal  of  the  Union  Government  formally  to 
acknowledge  Confederate  bclhgercncy  thus  appears  to 
be  hardly  more  than  a  stickling  for  theory.  In  matters 
relating  to  the  conduct  of  armies  in  accordance  with  the 
laws  of  war,  the  American  struggle  was  not  distinguish- 

"  President  JofTcrson  Davis  protested  against  the  proposal  to  treat 
the  crew  of  the  Savaniiah,  a  Confederate  privateer  captured  ofl 
Charleston,  as  pirates.  (Davis  to  Lincoln,  July  9,  1861 :  Rowland, 
Davis,  V,  109.) 


LEGAL  NATURE  OF  THE  CIVIL  WAR       67 

able  from  a  conflict  between  independent,  civilized  na- 
tions, for  the  formalities  of  war  were  observed  on  both 
sides.  The  Union  Government  treated  the  Confederate 
forces  as  belligerents  even  though  it  did  not  inten- 
tionally recognize  their  belligerency  in  any  direct,  formal 
manner. 

This  allowance  of  belligerent  rights  to  the  Confed- 
eracy was  thus  stated  by  the  Supreme  Court:  "To  the 
Confederate  army  [were]  conceded,  in  the  interest  of 
humanity  .  .  .  such  belligerent  rights  as  belonged  under 
the  laws  of  nations,  to  the  armies  of  independent  gov- 
ernments engaged  in  war  against  each  other.  .  .  .  The 
Confederate  States  were  belligerents  in  the  sense 
attached  to  that  word  by  the  law  of  nations."  ^^ 

The  fully  matured  attitude  of  the  Washington  Gov- 
ernment toward  the  Government  of  the  Confederacy 
may  be  summarized  as  follows:  According  to  the  Wash- 
ington view  secession  was  a  nullity  and  the  whole  South- 
em  movement  illegal.  Those  who  took  part  in  it  were 
insurgents  warring  against  their  rightful  government. 
They  were  technically  traitors  and  were  amenable  to  the 
municipal  power  for  crimes  in  the  same  sense  that  the 
Whiskey  insurgents  in  Washington's  administration  were 
amenable.  But  besides  this,  they  were  enemies  in  the 
same  sense  in  which  the  word  "enemy"  is  used  in  a 
public  war.  The  district  declared  by  the  constituted 
authorities  to  be  in  insurrection  was  "enemies'  territory" 
and  all  persons  residing  in  it  were  liable  to  be  treated  by 
the  L^nited  States  as  "enemies."  ^^  With  regard  to  these 
enemies  the  National  Government  could  exercise  both 

**  Opinion  of  Harlan  in  Ford  vs.  Surget,  97  U.  S.  605,  612. 

**The  harsh  rule  that  all  persons  residing  in  the  eleven  "insurrec- 
tionary States"  were  enemies  during  the  Civil  War  was  held  to  include 
even  foreigners  and  those  who  were  in  fact  loyal  to  the  flag.  For 
citations  and  arguments  on  this  subject,  see  House  Rep.  No.  262,  43 
Cong.,  1  sess.,  pp.  6  et  seq. 


68     THE  CONSTITUTION  UNDER  LINCOLN 

belligerent  and  sovereign  rights.  It  could  employ  the 
belligerent  power  of  blockading  Southern  ports,  and  the 
sovereign  power  of  prosecuting  Southerners  for  treason. 
The  Confederate  States'  Government  could  make  no 
valid  law  against  the  United  States,  but  this  govern- 
ment was  to  be  regarded  simply  as  the  military  repre- 
sentative of  the  insurrection  against  the  Federal  au- 
thority. To  avoid  cruelties  and  inhuman  practices, 
however,  belligerent  rights  were  "conceded"  to  the  Con- 
federate armed  forces,  and  this  concession  placed  the 
soldiers  and  officers  of  the  "rebel  army,"  as  to  all  matters 
directly  connected  with  the  "mode  of  prosecuting  the 
war,"  "on  the  footing  of  those  engaged  in  lawful  war." 
For  legitimate  acts  of  war,  therefore,  Confederate  officers 
and  soldiers  were  relieved  from  individual  civil  responsi- 
bility. This  relief  from  responsibility  was  based  not 
upon  the  validity  of  Confederate  legislation,  but  upon 
the  fact  that  rights  arising  from  the  usages  of  war  were 
"conceded"  by  the  United  States  to  the  Confederate 
army. 

One  of  the  distinguished  justices  of  the  Supreme  Court 
went  so  far  as  to  refer  to  the  Confederate  States  as  a 
de  facto  government.-^  This  contention  is  borne  out  by 
certain  decisions  involving  the  liability  of  marine  insur- 
ance companies  to  pay  losses  in  the  case  of  captures 
made  by  Confederate  cruisers  and  privateers.  If  the 
authority  of  the  Confederacy  were  utterly  null  and  its 
government  wholly  irresponsible,  then  its  ships  were 
piratical  and  were  not  entitled  to  the  belhgerent  right 
of  capture,  and  in  that  case  the  insurers  would  not  be 
liable.  But  the  courts  have  held  that  seizures  by  a  de 
jacto  government  constitute  captures  to  the  extent  that 
insurers  become  liable,  and  this  was  the  rule  applied  in 

"  CliiTord.  in  Ford  vs.  Surget,  97  U.  S.  620,  623. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       69 

regard  to  Confederate  captures.^^  As  has  been  often 
pointed  out,  the  blockade  of  Southern  ports  was  tanta- 
mount to  a  recognition  of  belligerency,  for  the  simulta- 
neous attempt  to  stigmatize  Confederate  cruisers  and 
privateers  as  pirates  was  promptly  abandoned.  One 
would  not  go  far  wrong  in  saying  that  the  de  facto  char- 
acter which  was  fully  recognized  by  other  nations  as 
belonging  to  the  Confederacy,  was  m  effect  conceded  by 
the  Government  at  Washington,  though  to  admit  this  in 
principle  was  more  than  the  political  branches  of  the 
Washington  Government  were  willing  to  grant. 


It  thus  appears  that  from  one  angle  the  adherents  of 
the  Confederacy  were  regarded  as  insurgents  and  trai- 
tors, while  from  another  angle  they  were  considered  bel- 
ligerents and  public  enemies.  These  two  possible  views 
toward  the  Southern  movement  were  fully  developed  in 
the  voluminous  debate  in  Congress  on  the  Confiscation 
Acts.  Forfeiture  of  property  was  urged  on  the  one  hand 
as  a  punishment  for  crime — the  crime  of  participating 
in  a  domestic  rebellion.  Those  in  revolt  were  deemed 
to  be  citizens  of  the  countiy  against  whose  government 
they  were  revolting;  this  revolt  was  therefore  treason, 
and  confiscation  was  appropriate  as  a  penalty  against 
persons,  and  as  a  punishment  of  their  guilt.  The  manner 
in  which  the  bald  principle  of  ''traitor  status"  was  con- 
fidently advanced  by  some  of  the  more  radical  speakers 
may  be  illustrated  by  a  few  quotations.  Senator  Howard 
of  Michigan  made  a  sharp  distinction  between  the  ex- 
isting rebellion  and  a  national  war.  "We  are  not  waging 
it,"  said  he,  "against  public  or  foreign  enemies,  .  .  .  but 

"Fifield  vs.  Ins.  Co.  of  Pa.,  47  Pa.  166,  cited  in  97  U.  S.  620. 


70     THE  CONSTITUTION  UNDER  LINCOLN 

against  persons  who  owe  obedience  to  this  government 
and  are  rightfully  subject  to  it.  .  .  .  In  rebellions  the 
lawful  government  is  not  restricted  to  the  instrumen- 
tahties  prescribed  to  independent  nations.  It  may  not, 
it  is  true,  violate  the  laws  of  humanity,  .  .  .  but  it  may 
on  account  of  their  violated  allegiance  .  .  .  impose  upon 
[the  rebels]  such  restraining  or  punitive  burdens  as  the 
government  may  think  best  fitted  to  repel  their  violence, 
to  subdue  their  rebellion,  and  restore  peace  and  order."  ^^ 
And  this  fiery  outbreak  from  Elliot  in  the  House  of 
Representatives  was  but  typical  of  many:  "Are  not 
these  rebels,  red-handed  and  black-hearted,  as  bad  as 
pirates?"  ^^  "When  this  rebellion  shall  have  ceased,"  he 
declared,  "the  parties  guilty  as  chief  traitors  will  be 
punished."  ^^ 

In  contrast  with  these  expressions  denouncing  the 
"rebels"  as  traitors  we  find  certain  supporters  of  con- 
fiscation who  were  quite  willing  to  treat  the  conflict  as 
a  public  war  instead  of  a  domestic  uprising.  Said  Blair 
of  Pennsylvania :  "What  are  our  relations  to  these  rebel- 
lious people?  They  are  at  war  with  us,  having  an  organ- 
ized government  in  the  cabinet  and  an  organized  army 
in  the  field,  and  I  hold  that  in  the  conduct  and  manage- 
ment of  the  war  on  our  part  we  are  compelled  to  act  in 
most  respects  toward  them  as  if  they  were  a  foreign 
government  of  a  thousand  years'  existence,  between 
whom  and  us  hostilities  have  broken  out."  ^° 

Even  those,  therefore,  who  were  voting  together  in 
favor  of  confiscation  failed  to  concur  as  to  the  principle 
upon  which  they  justified  the  measure.  After  following 
speech  upon  speech  in  which  attempts  were  made  to  rest 

"Cong.  Globe,   37  Cong.,  2  sess.,  p.  1717. 
*'Ibid.,   p.  2235. 
'Ibid.,   p.  2231. 
"Ibid.,   p.  2299. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       71 

the  confiscation  policy  upon  some  theory  or  other  as  to 
the  nature  of  the  war  or  the  standing  of  the  "rebels," 
one  is  likely  to  doubt  the  value  of  extended  deliberation 
upon  points  of  legal  theory  and  to  reach  an  attitude  of 
mind  in  which  the  avowal  of  any  theory  at  all — since 
theory  in  such  cases  usually  lags  so  far  behind  practical 
intention — seems  almost  superfluous. 

In  such  an  attitude  of  mind  the  "double  status"  theory 
seems  the  least  objectionable,  since  it  represents  a  desire 
to  rise  above  the  restraints  of  rigid  consistency  and  allow 
a  flexible  and  adaptable  line  of  policy.  This  principle 
was  well  presented  by  Blair  in  the  same  speech  from 
which  we  have  already  quoted.  To  him  it  did  not  in  the 
shghtest  degree  affect  our  "belligerent  relations"  with 
the  Confederates  "that  those  of  them  actively  engaged 
in  the  .  .  .  war  are  at  the  same  time  traitors  who,  when 
reduced  to  our  subjection,  are  amenable  to  the  civil  au- 
thorities for  the  crime  of  treason.  Indeed,  it  is  because 
.  .  .  they  are  belligerents  that  they  become  traitors."  ^^ 

The  conflict  was  thus  conceived  both  as  a  war  and  as 
a  rebelhon;  the  Southerners  were  "rebels,"  yet  belliger- 
ents; the  legal  relations  might  be  at  once  international 
and  municipal.  "Our  case  is  double,"  said  Sumner,  "and 
you  may  call  it  rebellion  or  war  as  you  please,  or  you 
may  call  it  both."  The  war  was  "mixed."  To  use 
Grotius'  classification  it  was  at  the  same  time  a  "pri- 
vate" and  a  "public"  war.'^ 

This  "double  status"  principle  was  not  only  the  basis 
of  Union  policy;  it  was  fully  affirmed  by  the  Supreme 
Court.  Justice  Grier  in  the  Prize  Cases  thus  stated  the 
view  of  the  majority  of  the  court: 

The  law  of  nations  .  .  .  contains  no  such  anomalous  doc- 
trine as  that  which  this  Court  [is]  now  for  the  first  time  de- 

^/bid.,  p.  2299. 
"/bid.,  p.  2189. 


72     THE  CONSTITUTION  UNDER  LINCOLN 

sired  to  pronounce,  to  wit:  That  insurgents  who  have  risen  in 
rebellion  against  their  sovereign,  expelled  her  courts,  estab- 
lished a  revolutionary  government,  organized  armies,  and 
commenced  hostilities,  are  not  enemies  because  they  are 
traitors;  and  a  war  levied  on  the  Government  by  traitors,  in 
order  to  dismember  and  destroy  it,  is  not  a  war  because  it  is 
an  "insurrection."  ^^ 

In  the  case  of  Miller  vs.  United  States,  this  doctrine 
was  reafl5rmed  in  the  following  words: 

It  is  ...  to  be  observed  that  when  the  [confiscation]  acts 
were  passed,  there  was  a  state  of  war  .  .  .  between  the  United 
States  and  the  rebellious  portions  of  the  country.  .  .  .  War 
existing,  the  United  States  were  invested  with  belligerent  rights 
in  addition  to  the  sovereign  powers  previously  held.  ...  In 
the  Amy  Warmick  and  in  the  Prize  Cases,  it  was  decided  that 
in  the  war  of  the  rebellion  the  United  States  sustained  the 
double  character  of  a  belligerent  and  a  sovereign,  and  had 
the  rights  of  both.^* 

In  studying  the  legal  character  of  the  war,  therefore, 
we  must  recognize  its  double  nature  as  a  basic  fact.^^  It 
remains  to  inquire  what  was  the  real  purport  of  this 
dual  principle.  Did  it  properly  mean,  as  Sumner  once 
said,  that  the  United  States  might  claim  belligerent 
rights  for  itself  while  denying  them  to  the  Confederate 
States?  ^^  This  suggests  loose  oratorical  expression 
rather  than  sound  reasoning.    A  truer  statement  would 

"67  U.  S.  670. 

•*78  U.  S.  306-307. 

"The  following  additional  citations  bearing  upon  the  legal  nature 
of  the  Civil  War  may  be  noted:  U.  S.  vs.  1500  Bales  of  Cotton.  27 
Fed.  Cos.  325;  Diary  of  Gideon  Welles,  I,  414;  22  Cyc,  1452;  Dole 
.  .  .  vs.  Merchants  .  .  .  Ins.  Co.,  6  Allen  (Mass.)  373;  Planters'  Bank 
vs.  Union  Bank,  16  Wall.  495;  Leathers  vs.  Commer.  Ins.  Co.,  2  Bush, 
296;  The  Venice,  2  Wall.  277;  Cross  vs.  Harrison,  16  How.  189;  Rose 
vs.  Himely,  4  Cranch  272;  Whiting,  War  Powers,  44  et  seq.,  215,  n. 

"  Cong.  Globe,  37  Cong.,  2  sesa.,  p.  2190. 


LEGAL  NATURE  OF  THE  CIVIL  WAR       73 

be  tRat  the  Government  all  along  upheld  its  claim  to  the 
allegiance  of  the  South,  and  that  all  the  obligations  and 
liabilities  of  this  allegiance  were  technically  held  to  be 
in  force,  while  for  practical  purposes  in  the  actual  con- 
duct of  the  war,  the  implications  of  violated  allegiance 
were  overlooked,  and  the  Confederacy  was  accorded  bel- 
ligerent standing.  Certainly  Sumner's  expression  is  un- 
sound if  it  means  that  the  rights  of  a  belligerent  could 
be  claimed  and  on  the  very  same  point  the  obligations 
of  a  belligerent  be  repudiated,  or  reciprocal  rights  denied 
on  the  other  side. 

Rightly  to  understand  this  dual  status  theory  of  the 
war,  it  should  be  remembered  that,  so  far  as  consum- 
mated poUcy  was  concerned,  the  traitor-status  argument 
was  of  slight  importance.  The  treason  theory  was  a 
familiar  matter  for  argument,  but  it  was  the  belligerent 
theory  that  was  acted  upon.  The  Southerners  were,  in 
fact,  treated  as  belligerents,  however  much  the  inappro- 
priate term  "traitor"  might  be  repeated  in  legislative 
halls  or  in  the  press.  The  Government's  action  was 
never  so  severe  as  the  words  of  the  radical  statesmen. 
In  a  problem  containing  so  many  involvements  it  is  not 
remarkable  that  the  Government  should  choose  a  mid- 
dle course,  steering  between  too  open  and  evident  a 
recognition  of  the  Confederacy  on  the  one  hand,  and  too 
serious  a  denial  of  substantial  belligerent  rights  on  the 
other. 


CHAPTER  IV 

THE   LAW   OF   TREASON 

I.  The  general  law  of  treason  at  the  outbreak  of  the  war 
II.    Legislation  regarding  treason,  conspiracy  and  rebellion 
during  the  war 

III.  Slight  enforcement  of  the  treason  statutes 

IV.  Lenient  attitude  of  the  Lincoln  Government 


The  one  crime  which  the  Constitution  of  the  United 
States  undertakes  to  define  is  that  of  treason.  The 
constitutional  provision  reads  as  follows: 

Treason  against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort. 

Having  thus  defined  the  crime,  the  Constitution- 
makers  proceeded  to  specify  the  nature  of  the  proof 
which  should  be  necessary  to  conviction,  and  to  intro- 
duce a  limitation  upon  the  punishment: 

No  person  shall  be  convicted  of  treason  unless  on  the  testi- 
mony of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court.  The  Congress  shall  have  power  to  declare  the 
punishment  of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture  except  during  the  life  of  the 
person  attainted. 

Elsewhere  the  Constitution  expressly  prohibits  bills 
of  attainder,  which  are  also  inferentially  prohibited  as 

74 


THE  LAW  OF  TREASON  75 

to  treason  in  the  section  just  quoted,  so  the  one  possible 
method  of  procedure  against  traitors  is  by  judicial  con- 
viction under  statutes  against  treason  which  are  passed 
by  Congress.  The  words  "attainder  of  treason"  in  the 
above-quoted  clause  relate,  therefore,  to  attainder  con- 
nected with  a  judicial  sentence  for  treason,  and  not  to 
attainder  by  legislative  act.  It  is  this  judicial  attainder 
which  must  not  "work  corruption  of  blood,  or  forfeiture 
except  during  the  life  of  the  person  attainted."  While 
Congress,  through  its  delegated  powers,  is  enabled  to 
define  various  crimes  against  the  United  States  and  pro- 
vide for  their  punishment,  these  specific  constitutional 
limitations  touching  the  particular  crime  of  treason  must 
not  be  overstepped. 

The  historical  reasons  for  these  constitutional  restric- 
tions are  familiar.  The  "bill  of  attainder" — i.e.,  an  act 
of  a  legislature  without  the  safeguards  of  a  judicial  hear- 
ing, decreeing  death  and  conniption  of  blood  against  a 
particular  person  for  a  crime  already  committed — was 
regarded  as  an  atrocious  thing,  wholly  out  of  keeping 
with  American  ideas  of  jurisprudence.  Since  it  had  been 
used  in  England  and  in  the  colonies,  the  convention  felt 
that  it  should  be  prohibited  in  the  Constitution. 

In  1790  Congress  passed  the  law  against  treason  which 
held  without  modification  until  the  Civil  War.  In  this 
law  the  penalty  of  death  was  provided  for  this  highest 
of  crimes.^ 

By  judicial  interpretation  a  fairly  definite  body  of 
principles  came  gradually  to  be  built  up  around  the 
general  subject  of  treason.  "Constructive  treason"  was 
eliminated.  There  must  be  an  actual  levying  of  war. 
A  mere  plotting,  gathering  of  arms,  or  assemblage  of 
men  is  not  treason.    The  overt  act  of  treason  must  be 

iU.  S.  Stat,  at  Large,  1,   112. 


76     THE  CONSTITUTION  UNDER  LINCOLN 

proved  before  collateral  testimony  can  be  admitted  tend- 
ing to  connect  a  particular  person  with  such  treasonable 
activity.^ 

The  "levying  war"  includes  not  only  formal  or  de- 
clared war,  but  also  any  combination  to  interfere  by 
force  with  the  execution  of  any  law  of  the  United  States. 
An  insurrection  to  obstruct  the  execution  of  an  act  of 
Congress  is  treason,  since  it  amounts  to  levying  war. 
Enlisting,  or  procuring  enlistment  in  the  enemy's  service, 
is  treason;  though  persuading  men  to  enlist  is  not,  unless 
consummated  by  actual  enlistment.  The  mere  uttering 
of  words  bearing  a  treasonable  import  does  not  consti- 
tute the  crime.  Mere  expressions  of  sympathy  with  the 
enemy,  although  sufficient  to  justify  the  suspicion  that 
one  is  at  heart  a  traitor,  are  not  sufficient  to  warrant 
conviction  for  treason. 

Treason  differs  from  other  crimes  in  that  there  are  no 
accessories.  All  are  principals,  including  those  who  aid, 
abet,  counsel,  or  countenance  the  act;  or  who,  though 
absent,  take  part  in  the  conspiracy  which  eventuates  in 
treason.  This  doctrine — that  all  are  principals — is  not 
inconsistent  with  that  other  doctrine  of  American  law 
which  excludes  "constructive  treason."  To  admit  "con- 
structive treason"  is  to  hold  a  man  as  traitor  for  advising 
treason  when  no  levying  of  war  has  actually  taken  place. 
If  such  a  levying  of  war  has  occurred,  however,  then 
those  who  were  distant  from  the  scene,  but  who  gave 
assistance,  are  principals  in  the  perpetration  of  the 
crime. 

Adhering  to  the  enemies  of  the  United  States,  giving 
them  aid  and  comfort,  constitutes  treason  in  the  full 
sense.  This  consists  in  furnishing  military  supplies, 
food,  clothing,  harbor,  or  concealment;  communicating 

'  This  was  the  point  of  law  which  saved  the  life  of  Aaron  Burr. 


THE  LAW  OF  TREASON  77 

information;  building,  manning,  and  fitting  out  vessels; 
sending  arms;  contributing  funds;  and  doing  other  simi- 
lar things.  The  principle  is  that  a  man  levies  war  when 
he  acts  with  those  who  have  set  it  on  foot. 

In  the  case  of  acts  which  do  fall  short  of  treason  they 
may  come  within  other  statutes  of  Congress  for  the  pun- 
ishment of  lesser,  but  related,  crimes.  "Conspiracy,"  for 
instance,  is  the  crime  of  conspiring  to  overthrow  the 
government  or  resist  the  laws;  while  "misprision  of 
treason"  is  the  offense  of  those  who  have  knowledge  of 
the  commission  of  acts  of  treason  but  do  not  disclose 
the  fact.^ 

II 

Such  were  the  established  legal  principles  concerning 
treason  in  1861.  The  general  law  regarding  treason, 
however,  was  of  slight  importance  during  the  war.  It 
was  there  in  the  background,  and,  according  to  the  views 
held  by  the  Union  administration  and  the  courts,  it  was 
technically  applicable  to  the  existing  struggle;  but  it 
was  not  pressed  as  a  legal  weapon  either  aga,inst  disloyal 
men  in  the  North,  or  against  the  adherents  of  the 
Confederacy. 

Instead,  special  legislation  was  passed  to  shape  the 
law   for   the   emergency.    The   first   instance   of   such 


*0n  the  general  subject  of  treason  in  the  United  States,  see: 
Druecker  vs.  Salomon,  21  Wis.  626;  U.  S.  vs.  Burr,  25  Fed.  Cas.  1,  25; 
U.  S.  vs.  Fries,  9  Fed.  Cas.  826,  3  Dall.  515;  In  re  Charge  to  Jury, 
30  Fed.  Cas.  1015,  1  Sprague  593;  McLaughlin  and  Hart,  Cyclopedia 
of  American  Government,  III,  559;  Whiting,  War  Powers  under  the 
Constitution,  84  et  seq.;  Beveridge,  Life  of  John  Marshall,  III,  403 
et  seq.;  Cotton,  Constitutional  Decisions  of  John  Marshall,  I,  96 
et  seq.;  Hare,  American  Constitutional  Law,  II,  1127  et  seq.;  Ann. 
Cyc,  1861,  p.  359;  S.  A.  Hackett,  in  38  Cyc.  of  Law  and  Procedure, 
951-960. 


78     THE  CONSTITUTION  UNDER  LINCOLN 

special  legislation  is  the  Conspiracies  Act  of  July  31, 
186L^ 

The  purpose  of  this  measure  was  to  deal  with  offenses 
involving  defiance  of  the  Government,  offenses  which 
needed  punishment,  but  for  which  the  treason  law  would 
have  been  unsuitable.  The  law  decreed  fine  and  impris- 
onment for  those  who  conspired  "to  overthrow  the  gov- 
ernment of  the  L^nited  States  or  to  levy  war  against 
them,  or  to  oppose  by  force  the  authority  of  the  gov- 
ernment," and  provided  a  similar  penalty  for  conspiring 
to  impede  Federal  officials  or  to  seize  Federal  property. 

The  supporters  of  this  measure  felt  that  it  was  neces- 
sary in  order  to  deal  with  offenses  which  did  not  amount 
to  full  treason,  but  the  minority  opposed  it  as  a  viola- 
tion of  the  constitutional  provision  whose  primary  pur- 
pose was  "to  restrict  the  power  of  Congress  in  the 
creation  of  a  political  crime  kindred  to  treason."  ^  The 
measure  was  criticized  as  affording  the  utmost  latitude 
to  prosecution  based  upon  personal  enmity  and  political 
animosity.  It  was,  however,  regarded  with  favor  by  the 
principal  law  officers  of  the  Government,  whose  duty  it 
was  to  press  indictments  and  to  deal  with  actual  prose- 
cutions. These  men  felt  that  their  activities  in  bringing 
offenders  to  justice  for  acts  of  a  semi-treasonable  char- 
acter would  be  greatly  embarrassed  if  their  choice  were 
limited  to  the  use  of  an  unnecessarily  severe  weapon. 
There  were  many  indictments  drawn  on  the  basis  of  this 
law^,  but  the  cases  were  not  pushed  to  conviction,  since 
the  usual  way  of  dealing  with  "political  criminals"  was 
by  summary  arrest  and  detention  rather  than  by  judicial 
proceedings, 

*  U.  S.  Stat,  at  Large,  XII,  284.  This  Conspiracies  Act  and  other 
criminal  laws  of  the  Civil  War  have  remained  on  the  statute  books 
and  were  used  to  punish  disloyal  acts  during  the  World  War  (Chafee, 
Freedom   of  Speech,   40-41). 

''Cong.  Globe,  37  Cong.,  1  sess.,  p.  233. 


THE  LAW  OF  TREASON  79 

Having  dealt  with  conspiracies  in  1861,  Congress  pro- 
ceeded much  farther  in  1862  by  introducing  major  modi- 
fications in  the  law  of  treason  itself. 

The  treason  law  of  1862  is  generally  referred  to  as  the 
"second  Confiscation  Act,"  but  its  title  reads:  "An  Act 
to  Suppress  Insurrection ;  to  punish  Treason  and  Rebel- 
lion, to  seize  and  confiscate  the  Property  of  Rebels,  and 
for  other  purposes." 

Aside  from  confiscation,  the  purpose  of  the  law  was 
to  bring  the  statutory  provisions  concerning  treason  into 
harmony  with  the  existing  emergency  and  to  soften  the 
penalty  for  that  offense. 

As  the  law  then  stood,  the  only  possible  punishment 
for  treason  was  death.  The  act  of  1790  was  still  in 
force  and  it  provided:  "If  any  person  owing  allegiance 
to  the  United  States  of  America  shall  levy  war  against 
them  or  shall  adhere  to  their  enemies,  giving  them  aid 
and  comfort,  .  .  .  such  person  shall  be  guilty  of  treason 
and  shall  suffer  death."  In  case  of  conviction  the  only 
alternative  by  which  the  offender's  life  could  be  saved 
was  pardon. 

Since  hundreds  of  thousands  of  men,  most  of  them 
youths,  were  guilty  of  this  grave  offense  according  to 
the  Government's  oft-repeated  interpretation  of  the  war, 
the  death  penalty  made  the  existing  law  of  treason  un- 
workable for  the  emergency.  A  few,  it  is  true,  favored 
the  retention  of  the  extreme  penalty.  "If  an  individual 
should  be  convicted  of  treason  against  this  government," 
said  Senator  Trumbull,  "I  would  execute  him.  ...  I  do 
not  believe  that  this  is  the  time  to  mitigate  the  punish- 
ment for  treason."  ^  The  prevailing  sentiment,  however, 
was  more  nearly  in  accord  with  the  view  of  the  Judiciary 

"Statement   of   Senator  Trumbull,   Cong.   Globe,  37   Cong.,  2   sess., 
p.  2170. 


80     THE  CONSTITUTION  UNDER  LINCOLN 

Committee  of  the  Senate,  The  Committee  felt  that 
there  should  be  some  differentiation  in  the  punishment.'^ 
In  some  cases,  they  thought  death  might  be  justified,  but 
in  other  cases  it  would  be  too  severe.  They  wanted  to 
provide  the  court  with  an  alternative  and  a  power  of 
discrimination  as  between  the  weightier  and  the  lesser 
cases. 

For  this  reason  Section  1  of  the  Treason  Act  of  1862 
declared : 

Every  person  who  shall  hereafter  commit  the  crime  of 
treason  against  the  United  States,  and  shall  be  adjudged  guilty 
thereof,  shall  suffer  death  ...  or,  at  the  discretion  of  the 
court,  he  shall  be  imprisoned  for  not  less  than  five  years,  and 
fined  not  less  than  ten  thousand  dollars.  ® 

This  lightening  of  the  penalty  for  treason  was  accom- 
panied by  another  provision  more  particularly  designed 
for  the  existing  emergency.  The  second  section  of  the 
same  measure  reads  as  follows: 

If  any  person  shall  hereafter  incite,  set  on  foot,  assist,  or 
engage  in  any  rebellion  or  insurrection  against  the  authority 
of  the  United  States,  or  the  laws  thereof,  or  shall  give  aid  or 
comfort  thereto,  or  shall  engage  in,  or  give  aid  and  comfort 
to,  any  existing  rebellion  or  insurrection,  and  be  convicted 
thereof,  such  person  shall  be  punished  by  imprisonment  for  a 
period  not  exceeding  ten  years,  or  by  a  fine  not  exceeding  ten 
thousand  dollars,  and  by  the  liberation  of  all  his  slaves,  if  any 
he  have;  or  by  both  of  said  punishments,  at  the  discretion  of 
the  court.® 

It  will  be  noted  that  in  this  section  the  death  penalty 
is  not  authorized  at  all,  and  that  in  fixing  the  extent  of 

'Statement  of  Senator  Clark,  ibid.,  p.  2166. 

*  U.  S.  Stat,  at  Large,  XII,  589.     In  addition,  the  offender's  slaves 
were  to  be  set  free,  and  he  was  to  be  disqualified  from  holding  office. 
"Interpreted  in  Opins.  Attys.  Gen.,  X,  513. 


THE  LAW  OF  TREASON  81 

the  fine  and  imprisonment,  a  maximum,  rather  than  a 
minimum,  is  set.  Though  the  word  "treason"  is  not 
used,  yet  the  wording  of  this  section  is  so  comprehensive 
as  to  cover  the  whole  case  of  the  Confederates  and  their 
adherents,  so  that  the  previous  section,  which  does  relate 
to  treason,  might  possibly  have  been  interpreted  as 
inapplicable  to  them. 

Engaging  in  rebellion  was  thus  declared  to  be  distinct 
from  the  crime  of  treason,  while  even  the  graver  crime 
was  to  be  punished  by  a  far  lighter  penalty  than  that 
which  previously  existed. 

Besides  the  Conspiracies  Act  of  1861  and  the  Treason 
Act  of  1862  there  was  another  measure  which  dealt  with 
disloyal  practices.  In  sections  24  and  25  of  the  Con- 
scription Act  of  March  3,  1863,  special  provision  was 
made  for  "resisting  the  draft."  Summary  arrest  with 
delivery  to  the  civil  authorities,  followed  by  fine  and 
imprisonment  in  case  of  conviction,  was  made  the  pen- 
alty for  enticing  to  desert,  harboring  or  aiding  the  es- 
cape of  deserters,  resisting  the  draft  or  counseling  such 
resistance,  obstructing  draft  officers,  or  dissuading  from 
military  duty.^°  The  proceeding  was  to  begin  with 
"summary  arrest  by  the  provost  marshal."  This  feature 
of  the  act  was  denounced  by  Davis  of  Kentucky  who 
declared  that  arrest  by  warrant  upon  affidavit  of  some 
person  charging  an  offense  against  the  law  was  the  only 
legal  method. 

in 

These,  then,  were  the  special  measures  passed  during 
the  war  for  the  purpose  of  dealing  with  disloyalty. 
"Treason,"  "conspiracy,"  "rebellion,"  "giving  aid  and 
comfort,"  "resisting  the  draft" — if  broadly  interpreted 

•'t/.  S.  Stat,  at  Large,  XII,  731,  sees.  24,  25. 


82     THE  CONSTITUTION  UNDER  LINCOLN 

these  terms  would  seem  to  cover  every  case  which  the 
authorities  might  wish  to  prosecute.  The  legal  arsenal 
seemed  to  be  full.  If  not,  Congress  would  doubtless 
supply  any  deficiency.  It  rested  with  the  administra- 
tion, the  district  attorneys,  the  juries,  and  the  courts,  to 
determine  how  far  these  weapons  were  to  be  applied. 
It  is  this  phase  of  the  problem  that  deserves  particular 
attention.  Having  noted  the  devices  that  were  ready  to 
hand  for  dealing  with  disloyalty,  we  must  now  turn  to 
the  more  laborious  task  of  discovering  in  what  spirit  and 
to  what  extent  these  devices  were  actually  employed. 

The  public  prosecutors  were  the  Attorney  General  at 
Washington  and  the  various  district  attorneys.  It  was 
the  function  of  the  Attorney  General,  a  member  of  the 
Cabinet,  reflecting  the  views  of  the  President  and  the 
administration,  to  direct  the  policy  of  the  district  attor- 
neys and  other  law  officers  of  the  Government.  In 
each  locality  these  district  attorneys  must  represent  the 
United  States  in  the  capacity  of  prosecutor,  obtaining 
arrests,  collecting  evidence,  fitting  the  charge  to  the 
offense,  calling  special  grand  juries,  framing  indictments, 
arguing  the  cases  when  they  came  to  trial,  obtaining 
additional  counsel  where  necessary,  moving  the  dismissal 
of  prosecutions  where  conviction  was  not  desired  and,  in 
general,  doing  everything  in  their  power  to  enforce  the 
various  war  measures  in  so  far  as  the  Government 
wished  them  to  be  enforced. 

Their  difficulty  was  not  to  discover  violators  of  the 
law.  There  were  few  localities  in  which  disloyalty  was 
absent,  while  in  many  districts  it  reached  staggering 
proportions.  Lincoln's  political  enemies  found  sufficient 
support  in  Indiana  to  control  the  legislature,  making  it 
necessary  for  Governor  Morton  to  obtain  funds  by  un- 
official means,  while  the  "Copperhead"  legislature  of 
Illinois  adopted  an  attitude  of  such  defiance  that  it  was 


THE  LAW  OF  TREASON  83 

prorogued  by  Governor  Yates.  Anti-war  societies  such 
as  the  Knights  of  the  Golden  Circle,  the  Order  of  Ameri- 
can Knights,  the  Order  of  the  Star,  and  the  Sons  of  Lib- 
erty numbered  hundreds  of  thousands  of  members.  In 
communication  with  the  enemy,  these  conspirators 
sought  to  promote  Union  defeat  and  to  overthrow  the 
Government  at  Washington.  Though  their  activities 
were  confined  in  the  main  to  such  petty  things  as  aid- 
ing desertion,  discouraging  enlistment,  recruiting  for  the 
enemy,  resisting  arrests,  destroying  enrollment  lists,  de- 
molishing government  property  and  circulating  disloyal 
literature,  yet  their  secret  plottings  involved  more  serious 
schemes.  Arms  and  ammunition  were  widely  distributed 
so  that  "rebel"  raids  into  the  North  might  be  aided  from 
the  rear;  and  there  were  plans  for  the  detachment  of 
the  region  beyond  the  Ohio  in  a  great  "Northwest  Con- 
federacy" which  was  to  unite  with  the  South  and,  by 
splitting  the  North,  contribute  substantially  to  Confed- 
erate success.  Assassination  of  Union  officers  and  re- 
lease of  Confederate  prisoners  were  included  within  the 
schemes  of  these  societies.  The  use  of  Canadian  soil  for 
the  hatching  of  their  conspiracies  caused  impatient  gen- 
erals to  insist  upon  the  "right  of  hot  pursuit"  (which, 
however,  Lincoln  overruled),  and  international  compli- 
cations were  thus  threatened.  Though  some  of  these 
grand  plots  were  fantastic,  they  were  none  the  less 
treasonable  in  purpose,  and  many  of  the  actual  deeds  of 
the  conspirators  amounted  to  aiding  an  enemy  in  arms.^^ 
In  the  midst  of  such  disloyalty,  however,  the  tribunals 
of  civil  justice  failed,  in  the  large  sense,  to  function  as 


"On  the  subject  of  disloyalty  in  the  North,  see  Nicolay  and  Hay, 
Lincoln,  VIII,  Ch.  i;  Report  of  the  Judge-Advocate-General  on  the 
Order  of  American  Knights  (Wash.,  1864) ;  Foiilke,  Lije  of  Oliver  P. 
Morton,  I,  Ch.  xxx;  0.  R.,  Ser.  II,  Vol.  2,  pp.  240  et  seq.;  Vol.  7,  pp. 
740   et  seq.;   Rhodes,   History   of   the   United  States,  V,  317   et   seq. 


84     THE  CONSTITUTION  UNDER  LINCOLN 

agencies  for  the  suppression  and  punishment  of  treason. 
Often  there  was  uncertainty  as  to  what  treason  was. 
Federal  courts  were  not  harmonious  on  the  subject  of 
treason  and  conspiracy  against  the  United  States,  and 
this  disagreement  proved  perplexing  to  attorneys,  com- 
missioners, and  marshals.  Disloyal  acts  or  conversations 
which  did  not  amount  to  treason  and  yet  were  so  flagrant 
as  to  call  for  some  notice — such  as  "drinking  the  health 
of  Jefferson  Davis" — offered  an  additional  embarrass- 
ment. In  disaffected  regions  the  Government's  prose- 
cutors were  sometimes  at  a  loss  to  know  how  to  resist 
an  attempt  to  rescue  a  prisoner.  Deputy  marshals  could 
be  appointed,  but  the  hiring  and  paying  of  such  deputies 
was  hedged  about  with  legal  difficulties,  while  their  effec- 
tiveness for  a  real  emergency  was  doubtful.  Where  the 
taint  of  lurking  disloyalty  was  diffused  through  the  mass 
of  the  people,  it  was  a  difficult  matter  to  select  trust- 
worthy law  officers  for  the  Government.  In  such  com- 
munities the  officials  always  dreaded  the  outcome  of 
prosecutions,  knowing  that  the  juries  would  naturally 
reflect  the  opinion  of  the  community.^^  Since  the  habeas 
corpus  privilege  was  suspended  and  mihtary  arrests  were 
occurring  on  all  sides,  the  officials  connected  with  the 
ordinaiy  administration  of  justice  felt  that  matters  had 
been  somewhat  taken  out  of  their  hands;  and  when  the 
Chief  Justice  of  the  United  States,  in  a  widely  pub- 
lished opinion,  took  direct  issue  with  the  President  on 
this  question, ^^  he  placed  a  choice  weapon  in  the  hands 
of  disaffected  agitators  who  were  busy  in  disseminating 
anti-administration  propaganda.  It  was  under  such  con- 
ditions that  the  laws  against  disloyalty  had  to  be  applied. 

"The  examination  of  a  huge  mass  of  unpublished  papers  in  the 
office  of  the  Attorney  General  (now  in  the  Library  of  Congress),  to- 
gether with  Federal  court  records  in  various  cities,  is  the  basis  for 
this  portion  of  the  discussion. 

"The  Merryman  case.    See  infra,  pp.  120-121. 


THE  LAW  OF  TREASON  85 

Strong  solicitations  were  received  from  loyal  men 
urging  the  punishment  of  "traitors,"  and  the  civil  arrests 
and  indictments  for  treason  and  conspiracy  were  suffi- 
ciently numerous  to  indicate  that  the  marshals  and  the 
attorneys  were  mindful  of  their  duties.  The  Chief  Jus- 
tice of  Colorado,  a  Federal  territory,  wrote  in  November, 
1861,  of  fifty  cases  of  treason  and  murder,  already  on 
the  docket,  with  forty-three  prisoners  newly  appre- 
hended, their  crimes  being  treason,  enlisting  for  the 
"rebel"  service,  and  conspiracy.  A  little  later  he  wrote 
of  fifty-four  indictments  for  treason  by  the  grand  jury. 
Some  prominent  Virginians  were  included  among  the 
true  bills  returned  at  Wheeling  early  in  the  war,  such 
men  as  John  B.  Floyd  and  Henry  A.  Wise  being  indicted 
for  treason  along  with  about  eight  hundred  others.  Fif- 
teen indictments  for  treason  were  reported  at  Baltimore 
in  1863.  At  Philadelphia  all  the  crew  of  the  Confeder- 
ate privateer  Petrel  were  solemnly  indicted  for  "high 
treason,"  and  other  indictments  for  the  same  offense 
brought  the  total  number  in  that  city  to  one  hundred 
twenty-five.^^  Conspiracy  cases  and  actions  for  ob- 
structing the  draft  were  brought  in  considerable  num- 
bers at  Indianapolis,  and  the  Federal  records  at 
Cleveland,  New  York,  St.  Louis  and  other  places  show 
many  similar  cases.^^ 


"B.  F.  Hall,  Chief  Justice  of  Colorado,  to  Attorney  General  Bates, 
Dec.  13,  1861;  E.  M.  Norton,  U.  S.  Marshal  at  Wheeling,  Va.,  to  Bates, 
Nov.  20,  1861;  N.  J.  Thayer,  Asst.  U.  S.  Dist.  Atty.  at  Baltimore,  to 
Bates,  Nov.  3,  1863;  J.  H.  Ashton,  Asst.  U.  S.  Dist.  Atty.  at  Philadel- 
phia, to  Bates,  Oct.  9,  1861 :  Attorney  General's  Papers  (MSS.,  Library 
of  Congress). 

"  One  should  not  be  misled,  however,  by  the  number  of  indictments 
brought;  for,  in  the  first  place,  the  number  is  small  in  comparison 
with  the  amount  of  disloyalty,  which  was  of  startling  proportions,  and, 
in  the  second  place,  after  the  indictments  were  instituted,  they  were 
uniformly  continued  or  dismissed  instead  of  being  pushed  to  trial  and 
conviction. 


86     THE  CONSTITUTION  UNDER  LINCOLN 

rv 

When  we  come  to  examine  the  policy  of  the  Lincobi 
administration  toward  prosecutions  for  treason  we  find 
that  leniency  and  expediency  were  the  controlling  mo- 
tives which  led  to  a  cautious  attitude  and  a  reluctance 
to  convict,  while  at  the  same  time  it  was  realized  that 
the  maintenance  of  respect  for  the  Government  and  the 
inculcation  of  a  wholesome  dread  of  the  consequences 
of  disloyalty  required  that  some  effort  be  made  in  partial 
enforcement  of  the  laws  on  the  subject. 

For  the  Attorney  General  it  was  a  pressing  question 
as  to  how  he  should  advise  the  district  attorneys,  who 
naturally  looked  to  Washington  for  uniform  instructions 
on  this  vital  question.  Is  it  the  policy  of  the  Govern- 
ment to  expedite  prosecutions  for  treason  or  to  defer 
action?  Does  the  Government  merely  desire  indict- 
ments or  does  it  wish  cases  to  be  pressed  to  the  ex- 
tremity? What  shall  be  done  with  the  members  of 
the  Order  of  American  Knights  who  have  arms  deposited 
in  various  places?  Shall  steps  be  taken  judicially 
against  persons  found  in  correspondence  with  the  enemy? 
Where  political  offenders  are  under  military  arrest  and 
are  confined  in  state  prisons,  shall  they  be  handed  over 
to  the  Federal  courts  for  trial  for  treason  or  detained  as 
"prisoners  of  war"?  Or  again,  shall  they  be  merely  re- 
leased on  pledge  of  loyalty?  Must  the  district  attorney 
wait  for  full  evidence  of  "overt  acts,"  or  should  he  give 
heed  to  the  strong  solicitations  of  parties  who  are  daily 
informing  against  disloyal  men?  ^* 

Such  inquiries  crowded  the  Attorney  General's  mail. 
Finding  their  offices  flooded  with  charges  against  parties 
accused  of  treason,  the  Federal  attorneys  could  not  pro- 

"  Attorney  General's  papers,  Passim. 


THE  LAW  OF  TREASON  87 

ceed  with  their  oflficial  duties  at  all  without  instruction 
as  to  the  wishes  of  the  administration.  The  mere  call- 
ing of  a  grand  jury  might,  of  course,  have  a  good  moral 
effect,  and  the  bringing  of  indictments  might  do  much 
to  clear  the  air;  but  beyond  that  the  attorneys  felt  indis- 
posed to  settle  for  themselves  such  far-reaching  matters 
of  public  policy. 

In  Washington  this  grave  question  had  to  be  treated 
as  a  whole  and  viewed  in  its  practical  bearings.  Hasty 
or  frequent  prosecutions  were  not  desired  by  the  admin- 
istration. Besides  the  well-known  leniency  of  Lincoln, 
which  was  always  an  important  factor,  there  was  a  reali- 
zation that  conviction  in  such  a  highly  technical  pro- 
ceeding as  treason  would  be  difficult  to  obtain,  especially 
in  the  case  of  sympathetic  juries.  To  institute  a  trial 
and  then  fail  of  conviction  would  weaken  the  Govern- 
ment; but  success  might  be  even  worse,  for  it  would 
render  the  victim  a  martyr.  A  careful  reading  of  French 
history  in  the  year  following  the  overthrow  of  Napoleon 
will  show  that  the  Bourbon  monarchy  made  only  a  half- 
hearted attempt  to  apprehend  Ney;  and,  so  far  as  their 
standing  with  the  people  was  concerned,  the  government 
felt  that  the  marshal  had  done  them  more  harm  by 
allowing  himself  to  be  captured  than  by  his  betrayal  at 
the  time  of  Napoleon's  return  from  Elba. 

Attorney  General  Bates  reflected  the  views  of  the 
Lincoln  Cabinet  when  he  wrote  to  one  of  his  district 
attorneys  in  July,  1861 : 

I  am  ...  of  opinion  that  an  excellent  moral  effect  may  be 
produced  by  prosecution  of  some  of  the  most  "pestilential  fel- 
lows" among  us.  But  I  think  also  that  the  most  judicious  care 
is  necessary  to  prevent  reaction.  Better  let  twenty  of  the 
guilty  go  free  .  .  .  than  to  be  defeated  in  a  single  case.  You 
do  well  not  to  be  overborne  by  the  overheated  zeal  of  even 
good  men,  on  the  outside,  who  are  not  responsible  for  results 


88     THE  CONSTITUTION  UNDER  LINCOLN 

as  we  are.  .  .  .  Success  in  the  selected  cases  is  very  desirable, 
but  a  multitude  of  cases  is  not  only  not  desired,  but  feared,  as 
tending  to  excite  popular  sympathy  and  to  beget  the  idea  of 
persecution.  I  think  it  very  probable  that  you  may  find  cases 
short  of  treason — e.g.,  conspiracy,  violating  the  mails,  and  the 
like,  A  few  convictions  for  that  sort  of  crime,  I  think,  would 
help  the  cause,  by  rubbing  off  the  varnish  from  romantic 
treason  and  showing  the  criminals  in  the  homely  garb  of  vul- 
gar felony." 

In  the  administration  policy  there  was  a  blending  of 
merciful  and  practical  considerations.  A  clement  course 
was  adopted  partly  because  of  the  feeling  that  "you  can- 
not indict  a  whole  people,"  and  also  because  of  the 
absence  of  a  vindictive  policy  on  the  part  of  the  men 
in  power,  conspicuously,  of  course,  the  President.  In  a 
highly  characteristic  though  not  a  widely  known  docu- 
ment— the  message  justifying  his  contemplated  veto  of 
the  second  Confiscation  Act  of  1862 — Lincoln  declared 
that  "the  severest  justice  may  not  always  be  the  best 
policy,"  suggested  that  a  "power  of  remission"  should 
accompany  the  provision  for  the  forfeiture  of  property 
as  a  consequence  of  treason,  and  pointed  out  that  the 
persons  against  whom  Congress  was  legislating  in  this 
act  would  be  "within  the  general  pardoning  power."  ^^ 

The  mild  temper  of  this  passage  is  a  fair  indication 
of  the  spirit  of  executive  clemency  which  is  always  an 
important  factor  in  connection  with  the  enforcement  of 

"Bates  to  A.  S.  Jones,  U.  S.  Dist.  Atty.  at  St.  Louis,  July  1,  1861: 
Attorney  General's  Letter  Books.  In  another  letter  of  similar  import 
Bates  wrote:  "It  is  not  desirable  to  try  many  cases  of  treason.  It 
is  a  crime  hard  to  prove,  being  guarded  by  a  variety  of  legal  [techni- 
calities]. And  even  conviction  makes  the  convict  all  the  more  a 
martyr  in  the  e3^es  of  his  partisans.  ...  It  would  be  unfortunate  to 
be  defeated  in  many  such  cases.  It  is  far  better  policy  ...  to  prose- 
cute offenders  for  vulgar  felonies  .  .  .  than  for  romantic  and  genteel 
treason."    (0.  R.,  Ser.  II,  Vol.  5,  p.  190.) 

"*  Senate  Journal,  July  17,  1862,  pp.  872-874. 


THE  LAW  OF  TREASON  89 

penal  statutes,  and  this  attitude  of  clemency  was  reen- 
forced  by  those  considerations  which  appealed  to  the 
practical  sense.  The  laws  against  treason  were  too  ter- 
rible to  be  fully  enforced,  while  a  loose  and  wholesale 
appeal  to  the  laws  accompanied  by  a  failure  to  follow 
through  to  conviction  would  cause  them  to  become  in- 
effective and  to  lose  their  terror.  The  misuse  of  the 
charge  of  "treason,"  as  for  instance  against  crews  of 
Confederate  privateers,  tended  to  cheapen  the  charge. 
Balancing  all  these  factors,  the  administration  inevitably 
chose  the  lenient  course.  In  fine,  the  Lincoln  Govern- 
ment was  both  too  circumspect  and  too  humane  to  follow 
up  the  implications  of  the  law  of  treason. 

Where  enthusiasm  for  the  war  was  particularly  ardent, 
this  lenient  attitude  of  the  Union  Government  failed  to 
satisfy,  and  not  infrequently  the  zeal  of  grand  juries 
outran  that  of  the  Federal  officers.  The  accounts  from 
West  Virginia,  for  instance,  indicate  that  the  attorney 
there,  Benjamin  H.  Smith,  had  a  grand  jury  "on  his 
hands"  which  caused  him  no  small  embarrassment.  The 
grand  jurors  extended  their  inquiries,  he  wrote,  in  spite 
of  all  that  he  and  the  court  could  do.  He  therefore  de- 
clined a  grand  jury  at  the  spring  term  of  the  court  in 
1862  and  directed  that  no  grand  jury  be  summoned  for 
Clarksburg  or  Wheeling  at  the  next  term.  The  judge 
and  the  attorney  inclined  to  the  conservative  view  and 
recommended  that  inquiries  be  confined  to  a  few  promi- 
nent men  who  had  taken  an  active  part  in  secession. 
The  zealous  jurors,  however,  disregarded  the  recommen- 
dations of  the  court  and  undertook  a  comprehensive  pur- 
suit of  all  who  had  been  in  the  rebellion. ^^  In  instances 
of  this  sort  the  question  of  selecting  certain  cases  for 
prosecution  always  presented  itself.    The  Attorney  Gen- 

"Benj.  H.  Smith,  U.  S.  Dist.  Atty.  for  Western  Dist.,  Va.,  to  Bates, 
May  16  and  Aug.  19,  1862:  Attorney  General's  Papers. 


90     THE  CONSTITUTION  UNDER  LINCOLN 

eral's  oflBce  seemed  to  favor  a  judicious  selection  of 
a  few  prominent  cases  for  prosecution,  and  in  some  cases 
instructions  to  this  effect  were  given. ^° 

Toward  the  lighter  offenses,  which  involved  something 
less  than  full  treason,  the  Government's  policy  was  also 
mild.  By  stretching  the  phrase  "giving  aid  and  com- 
fort" and  by  a  vigorous  application  of  the  Conspiracies 
Act  and  certain  parts  of  the  Conscription  Law,  a  great 
number  of  petty  indictments  could  have  been  pushed  for 
such  acts  as  furnishing  supplies,  giving  harbor  or  con- 
cealment, belonging  to  a  disloyal  association,  enticing  to 
desertion,  and  obstructing  the  draft.  In  such  cases,  how- 
ever, a  short  military  detention  followed  by  release  on 
parole  was  the  rule.  In  Cambria  and  Clearfield  coun- 
ties, Pennsylvania,  thirty-six  indictments  for  "conspir- 
acy" were  brought.  It  was  felt  that  these  were  poor 
and  ignorant  men  who  were  guilty  of  no  overt  act,  but 
were  merely  members  of  an  unlawful  association  into 
which  they  had  been  drawn  by  designing  leaders.  The 
indictments  against  them  were  therefore  dismissed.'^ 

Those  clauses  of  the  Conscription  Act  which  dealt 
with  disloyal  practices  w^re  not  loosely  applied,  but 
were  narrowly  interpreted.  According  to  the  principles 
actually  observed  by  the  courts,  the  utterance  of  treason- 
able words  would  not  be  "enticing  to  desert,"  and  the 


""It  was  after  the  war  that  such  advice  was  more  likely  to  be 
given.  Attorney  General  Speed  wrote  as  follows  to  the  district  attorneys 
in  Tennessee  in  1866:  "I  am  directed  by  the  President  to  say  .  .  . 
that  he  deems  it  important,  and  you  are  therefore  instructed,  to 
prosecute  some  few  persons  who  have  been  indicted  for  high  treason 
in  your  court.  .  .  .  The  persons  prosecuted  must  have  been  prominent, 
conspicuous  and  influential  in  getting  up,  sustaining  and  prosecuting 
the  rebellion."  (Speed  to  U.  S.  Dist.  Attys.  at  Nashville,  Memphis 
and  Rogersville,  Tcnn.,  and  Louisville,  Ky.,  Mar.  19,  1866:  Attorney 
General's  letter  books.) 

"Attorney  General's  letter  books,  June-July,  1865,  esp.  J.  H.  Ash- 
ton  to  President  Johnson,  Jul.  31,  1865. 


THE  LAW  OF  TREASON  91 

publishing  of  a  disloyal  editorial  would  not  be  "resisting 
the  draft,"  but  these  charges  were  pressed  only  against 
those  who  produced  desertion  by  direct  influence  upon 
some  one  in  the  service  or  who  resisted  an  officer  engaged 
in  enforcing  conscription. 

It  is  a  striking  fact  that  no  life  was  forfeited  and  no 
sentence  of  fine  and  imprisonment  carried  out  in  any 
judicial  prosecution  for  treason  arising  out  of  the  "rebel- 
lion." The  case  of  Mumford,  executed  by  sentence  of  a 
military  commission  in  New  Orleans  in  1862  for  having 
torn  down  the  United  States  flag,  was  a  most  unfortu- 
nate blunder,  but  it  was  exceptional  and  isolated.^- 
Though  the  existence  of  martial  law  at  the  time  the  act 
was  committed  is  in  a  large  sense  not  a  sufficient  excuse, 
yet  it  takes  the  case  entirely  out  of  the  category  of  con- 
stitutional treason,  and  the  incident  should  be  judged  in 
connection  with  the  many  hundreds  of  offenders  who 
were  allowed  to  go  about  free  of  punishment. 

Practically  the  whole  activity  of  the  officers  of  justice 
in  the  enforcement  of  the  treason  statutes  consisted  in 
the  bringing  of  indictments  and  the  incomplete  prosecu- 
tion of  a  few  cases.  The  typical  procedure  was  to  con- 
tinue indictments  which  the  grand  jury  brought,  keep- 
ing them  on  the  docket  from  one  term  of  court  to  the 
next  and  ultimately  to  enter  a  nolle  prosequi — i.e.,  to 
dismiss  the  cases. 

"Dismiss  all  conspiracy  cases  in  Missouri"  was  the 
word  from  the  Attorney  General's  Office  in  1866  to  the 


"The  perpetrator  of  this  act,  General  Butler,  was  removed  by 
Lincoln.  Nicolay  and  Hay,  Lincoln,  V,  268,  269,  278.  West  H. 
Humphries,  United  States  District  Judge  in  Tennessee,  supported  the 
"rebellion"  and  on  impeachment  proceedings  he  was  found  guilty  of 
charges  which  included  "levying  war."  He  was  thus  found  guilty  of 
treason  by  the  United  States  Senate,  sitting  as  an  impeachment 
court,  but  he  was  not  convicted  of  this  crime  in  any  judicial  prose- 
cution.    (.Cong.  Globe,  37  Cong.,  2  sess.,  p.  2949.) 


92     THE  CONSTITUTION  UNDER  LINCOLN 

United  States  attorney  at  St.  Louis.-^  "You  are  to  sus- 
pend proceedings  in  the  indictment  against  C.  C,  Clay 
for  treason  and  conspiracy  until  further  advised"  was 
the  instruction  sent  to  Montgomery,  Alabama.  In 
another  case  the  instruction  read:  "You  are  hereby 
authorized  to  dismiss  any  indictment  against  any  per- 
son for  a  political  offense,  if  in  your  judgment  it  is  right 
and  proper  to  do  so."  These  expressions  are  typical  of 
the  answers  sent  in  the  great  majority  of  cases  when  dis- 
trict attorneys  requested  advice  as  to  indictments.  The 
law  officers  were  constantly  reminded  that  the  dismissal 
of  treason  cases  was  within  their  discretion,  and  often 
there  was  a  definite  order  from  the  Attorney  General 
directing  such  dismissal. 

Comparatively  few  of  the  treason  cases  ever  came  up 
for  trial,  and  when  they  did,  they  occasioned  a  consider- 
able embarrassment  to  the  Government.  The  unfortu- 
nate consequences  which  accompanied  actual  attempts 
to  prosecute  these  cases  are  well  illustrated  in  the  trial 
of  the  Confederate  privateersmen  at  Philadelphia  in 
1861.  The  Petrel,  "on  a  hostile  cruise  as  a  pretended 
privateer  under  .  .  .  pretended  letters  of  marque  and 
reprisal  from  one  Jefferson  Davis,"  was  captured  by  the 
U.  S.  frigate  St.  Lawrence,  and  the  crew  of  thirty-five 
men  were  indicted  before  the  Federal  Circuit  Court  at 
Philadelphia  for  treason,  their  crime  being  also  described 
as  "piracy."  Intense  popular  excitement  was  manifested 
as  the  cases  were  brought  to  trial,  some  of  them  before 
Justice  Cadwallader,  and  others  before  Justice  Grier, 
but  the  judges  did  not  seem  to  enjoy  the  proceeding. 
Finally,  Justice  Grier  burst  out  as  follows: 

"M.  F.  Pleasants,  Clerk  in  Attorney  General's  office,  to  C.  G.  Mauro, 
U.  S.  Dist.  Atty.  at  St.  Louis,  Oct.  17,  1866;  same  to  J.  Q.  Smith, 
U.  S.  Dist.  Atty.  at  Montgomcr>',  Ala.,  Feb.  21,  1867;  Attorney 
General  Speed  to  U.  S.  Dist.  Atty.  at  LouLsville,  Ky.,  May  31,  1866: 
Attorney  General's  letter  books. 


THE  LAW  OF  TREASON  93 

Justice  Grier: 

I  do  not  intend  to  try  any  more  of  these  cases.  I  shall  leave 
them  to  my  brother  Cadwallader.  I  have  other  business  to 
attend  to,  and  do  not  mean  to  be  delayed  here  from  day  to  day 
in  tr}'ing  charges  against  a  few  unfortunate  men  here  out  of 
half  a  million  that  are  in  arms  against  the  government.  Why 
should  this  difference  be  made  between  men  captured  on 
land  and  on  the  sea? 

Mr.  Earle: 
These  are  privateers. 

Justice  Grier: 

But  why  make  a  difference  between  those  taken  on  land  and 
on  water?  Why  not  try  all  those  taken  on  land  and  hang 
them?  That  might  do  with  a  mere  insurrection;  but  when  it 
comes  to  civil  war,  the  laws  of  war  must  be  observed,  or  you 
will  lay  it  open  to  the  most  horrid  reactions  that  can  possibly 
be  thought  of;  hundreds  of  thousands  of  men  will  be  sacri- 
ficed upon  mere  brutal  rage.  ...  I  will  not  sit  on  another 
case.  I  am  not  going  to  have  the  whole  civil  business  of  the 
court  and  private  suitors  set  aside  for  useless  trifling.^* 

This  illustrates  the  attitude  of  a  practical-minded 
judge  toward  the  efforts  which  a  puzzled  and  well-mean- 
ing district  attorney  was  making  to  prosecute  some  of 
the  treason  cases. 

In  four  of  these  cases  conviction  was  obtained,  and  an 
interesting  correspondence  then  ensued  between  the  dis- 
trict attorney  and  Attorney  General  Bates.  The  district 
attorney  asked  if  it  were  in  line  with  the  policy  of  the 
Government  to  proceed  further  with  the  cases.  Bates 
replied  that  there  was  no  need  of  haste.  "The  first 
great  end  being  attained,  by  the  conviction,"  he  con- 
tinued, "there  are  indeed  some  political  reasons,  very 

"  Report  of  proceedings  in  U.  S.  Circuit  Court  at  Philadelphia,  Nov. 
4,  1861.  Enclosure  in  J.  H.  Ashton  to  Bates,  same  date:  Attorney 
General's  papers. 


94     THE  CONSTITUTION  UNDER  LINCOLN 

operative  on  my  mind,  although  prudently  not  proper 
for  publication  just  now,  which  make  it  desirable  to  hold 
these  cases  up  to  await  certain  important  events  now  in 
the  near  future."  ^^  The  Attorney  General  then  referred 
to  the  insurgents'  vow  of  vengeance  upon  captured 
Unionists  in  case  punishment  upon  these  convictions 
should  take  place.  The  conclusion  of  the  matter  was 
that  judgment  was  suspended  in  the  case  of  those  con- 
victed, and  ultimately  all  the  men  indicted  were  released. 

In  this  instance,  the  Government  authorities  showed 
actual  embarrassment  at  the  Government's  success,  and 
the  unwisdom  of  attempting  to  execute  the  judgments 
was  at  once  recognized.  These  proceedings  at  Philadel- 
phia make  it  easy  to  understand  why  the  Lincoln  Gov- 
ernment never  cared  to  prosecute  the  treason  cases.  The 
purpose  of  the  Government  was  not  to  convict  any  indi- 
viduals for  treason.  The  purpose  was  to  vindicate  the 
laws  and  protect  the  nation  against  disloyalty.  The  Gov- 
ernment's object  was  precautionary,  not  punitive.  Ar- 
rest and  detention  of  dangerous  characters  was  precisely 
the  object  which  best  suited  the  administration. 

This  is  one  side  of  the  question  that  has  been  gener- 
ally overlooked.  The  Government  has  been  criticized 
for  using  summary  methods  in  place  of  judicial  process, 
but  it  is  well  to  remember  that  summary  methods  per- 
mitted greater  leniency.  To  handle  cases  of  disloyalty 
in  the  courts  would  have  required  either  backing  down 
on  the  part  of  the  Government  or  pursuing  each  case  to 
conviction  and  on  through  the  whole  course  to  the  ex- 
ecution of  the  sentence;  for  there  is  small  justification 
for  starting  judicial  proceedings  only  to  dismiss  them 
later.  By  the  use  of  summary  methods,  however,  while 
the   immediate   object    (protection   against   the   conse- 

** Bates  to  J.  H.  Ashton,  Nov.  10,  1861:     ibid. 


THE  LAW  OF  TREASON  95 

quences  of  disloyalty)  was  accomplished  at  once,  the 
administration  was  free  to  release  the  political  prisoners 
at  any  time.  Executive  measures  in  such  matters,  while 
swifter  and  more  blunt  than  judicial  proceedings,  were 
also  more  flexible. 


CHAPTER  V 

THE  TREATMENT   OF   CONFEDERATE   LEADERS 

I.   Policy  toward  enforcement  of  the  treason  statutes  at 
the  close  of  the  war 

II.  The  capitulations  of  surrender  in  their  bearing  upon 
the  liability  of  paroled  prisoners  of  war  to  trial  for 
treason 

III.  Davis'  imprisonment,  and  discussion  as  to  the  method 

of  his  trial 

IV.  The  Government's  preparations  for  the  prosecution: 

The  indictment 

V.  The  fourteenth  amendment  cited  in  Davis'  defense: 
Dana's  doubts  concerning  the  prosecution 

VI.   Concluding  phases  of  the  prosecution:   Dismissal  of 
the  indictment 


After  the  close  of  the  war  in  April,  1865,  a  changed 
situation  presented  itself  with  reference  to  the  enforce- 
ment of  the  treason  statutes.  Lincoln's  moderating  in- 
fluence was  gone  and  in  its  place  there  came  an  atmos- 
phere of  hysteria  and  fierce  resentment  which  produced 
many  wild  rumors,  among  which  was  the  story  that  Con- 
federate leaders  were  back  of  the  assassination  of  the 
President.  In  some  quarters  of  the  South  and  the  border 
States — notably  in  Kentucky — returning  Confederates 
took  control  of  matters  and  made  life  intolerable  for 
Unionists.    President  Johnson,  after  his  policy  had  ma- 

96 


TREATMENT  OF  CONFEDERATE  LEADERS  97 

tured,  was  as  moderate  perhaps  as  Lincoln,^  but  soon 
the  struggle  for  "reconstruction"  brought  vindictive  radi- 
cals to  the  top,  and  the  influence  of  such  men  inevitably 
appeared  in  the  courts  in  connection  with  "treason" 
cases. 

One  therefore  notices  a  considerable  increase  in  the 
number  of  treason  indictments  in  the  years  1865  and 
1866.  Over  nineteen  hundred  indictments  for  treason 
and  giving  aid  and  comfort  to  the  enemy  were  on  the 
docket  in  Eastern  Tennessee  in  the  latter  part  of  1865,^ 
while  in  Missouri  the  pending  cases  included  four  for 
treason  and  one  hundred  forty-two  for  conspiracy.^  In 
Maryland  the  docket  of  the  Circuit  Court  in  the  same 
year  showed  twenty-five  indictments.^  The  suggestion 
had  been  made  that  all  who  left  that  State  to  join  the 
"rebel"  army  should  be  indicted,  and  more  than  four 
thousand  names  had  been  submitted  to  the  grand  jury 
by  the  military  authorities,  but  the  prevailing  opinion 
seems  to  have  been  that  only  the  more  prominent  should 
be  prosecuted.^  In  Kentucky  and  Virginia  many  new 
cases  were  brought,  though  not  pressed  to  conviction,  in 
the  years  '65  and  '66, 

At  Washington  there  seems  to  have  been  no  decisive 
and  uniform  policy  regarding  this  matter.    On  one  occa- 

8  The  close  resemblance  of  Johnson's  reconstruction  policy  to  that 
of  Lincoln  is  especially  revealed  in  connection  with  Johnson's  attempt 
to  bring  the  Southern  States  back  into  the  Union  in  1865,  and  in 
his  violent  disagreement  with  Stanton,  Sumner,  Stevens  and,  in  general, 
the  radicals  who  favored  harsh  measures.  As  to  the  treatment  of 
Jefferson  Davis,  Johnson's  attitude  seems,  at  least  for  a  time,  to 
have  been  more  vindictive  than  Lincoln's. 

'Chicago  Tribune,  Nov.  29,  1865,  p.  1. 

'W.  N.  Grover,  U.  S.  Dist.  Atty.  for  Mo.,  to  Attorney  General 
Speed,  Sept.  13,  1865:  Attorney  General's  papers. 

*W.  I.  Jones,  U.  S.  Dist.  Atty.  for  Md.,  to  Attorney  General  Speed, 
Nov.  4,  1865:    ibid. 

"N.  J.  Thayer,  Asst.  U.  S.  Dist.  Atty.  for  Md.,  to  Attorney  General 
Speed,  June  16,  1865:     ibid. 


98     THE  CONSTITUTION  UNDER  LINCOLN 

sion  the  Attorney  General  would  advise  that  the  Gov- 
ernment did  not  wish  "to  keep  open  the  sores  made  in 
and  by  the  late  struggle,"  ®  while  again  in  the  face  of 
aggravating  circumstances  he  would  call  for  indictments. 
Attorney  General  Speed,  in  writing  to  Judge  Underwood 
at  Alexandria,  Virginia,  on  April  24,  1865,  declared  that 
"the  rebellious  spirit  now  rampant  must  be  subdued" 
and  referred  to  the  President's  "earnest  wush"  that 
offenders  be  brought  to  justice."^  A  little  later  disturb- 
ances in  Kentucky  prompted  the  remark  that  "indict- 
ments against  say  a  dozen  of  these  traitors  will  cause 
them  all  to  know  and  feel  that  they  have  a  Government 
with  ample  and  sufiScient  power  to  punish  the  guilty  and 
defend  the  innocent."  ^  It  must  be  remembered,  how- 
ever, that  aggravating  circumstances,  such  as  the  perse- 
cution of  loyal  Union  men,  made  action  seem  necessary, 
and  that  extreme  reluctance  was  always  manifested  on 
the  part  of  the  Washington  authorities  in  bringing  the 
indictments.  Moreover  instructions  to  "dismiss"  regu- 
larly followed  instructions  to  begin  prosecutions,  and 
the  President's  pardon  policy  at  this  time  was  extremely 
liberal. 

Perhaps  the  chief  reason  for  the  increase  of  treason 
indictments  after  the  war  was  that  at  this  time  the 
treason  laws  began  to  be  used  against  adherents  of  the 
Confederacy,  whereas  during  the  war  the  efforts  toward 
prosecution  were  mainly  confined  to  disloyal  men  within 
the  Northern  States.  To  speak  of  the  supporters  of  the 
Confederacy  as  "traitors"  to-day  brings  a  sense  of  revul- 
sion to  the  thoughtful  American,  who  realizes  that  loy- 


*  Attorney  General  Speed  to  W.  N.  Grover  at  St.  Louis,  Sept.  20, 
18C5:     ibid. 

'  Ibid. 

"W.  M.  Stewart,  Chf.  Clk.,  Office  of  Attorney  General,  to  Gary  Cox, 
Campbellsvillc,  Ky.,  May  31,  1865:     ibid. 


TREATMENT  OF  CONFEDERATE  LEADERS  99 

alty  to  a  sacred  cause  burned  like  a  pure  flame  in  the 
South  and  that  patriotism  and  devotion  to  home  were 
the  high  motives  which  impelled  the  men  of  that  section 
to  deeds  of  self-sacrifice  and  death. 

In  order  properly  to  understand  the  history  of  that 
unfortunate  period,  however,  one  must  remember  that 
the  Confederates  were  regarded  by  the  Union  authori- 
ties as  guilty  of  treason.^  Though  such  an  attitude  was 
most  regrettable,  yet  it  was  a  fact  that  according  to  the 
laws  those  who  participated  in  the  war  on  the  Confeder- 
ate side  were  liable  for  "treason"  and  "rebellion"  as 
modified  and  softened  for  the  emergency,  and  this  traitor 
status  was  fully  sustained  by  the  Supreme  Court. 

This  idea  of  the  Confederates  as  traitors  produced  a 
vast  amount  of  extreme  talk  with  regard  to  the  punish- 
ment of  at  least  the  more  prominent  ones  at  the  close 
of  the  war.  "When  the  rebellion  is  put  down  in  Eastern 
Virginia,"  said  Senator  Trumbull,  "it  is  to  be  put  down 
by  driving  into  exile,  or  killing  upon  the  battlefield,  or 
hanging  upon  the  gallows,  the  traitors  who  would  over- 
run and  oppress  Western  Virginia."  ^°  Secretary  Welles 
also  favored  the  execution  of  the  "rebel"  leaders  for 
treason.  Neither  imprisonment  nor  exile  would  be  last- 
ing, he  thought.  "Parties  would  form  for  [the]  relief 
[of  the  condemned]  and  [would]  ultimately  succeed  in 

°  In.  the  various  arguments  concerning  the  Southerners'  liability  for 
treason,  little  attention  seems  to  have  been  paid  to  the  second  section 
of  the  Treason  Act  of  1862  in  which  the  crime  of  "rebellion"  was 
defined  and  a  milder  penalty  than  that  for  treason  was  fixed.  Supra, 
pp.  80-81. 

^''  Cong.  Globe,  37  Cong.,  2  sess.,  p.  3317.  Sumner,  while  urging 
mildness  in  general,  declared:  "But  the  tallest  poppies  must  drop. 
For  the  conspirators,  who  organized  this  great  crime  and  let  slip 
the  dogs  of  war,  there  can  be  no  penalty  too  great"  {Ibid.,  p.  2196). 
Trumbull  wrote  to  President  Johnson  on  April  21,  1865:  "Any  as- 
sistance I  can  render  to  bring  to  punishment  the  leaders  of  the 
rebellion  .  .  .  will  be  cheerfully  given."  (Johnson  Papers  [MSS., 
Library  of  Congress],  Vol.  59,  No.  2865.) 


100  THE  CONSTITUTION  UNDER  LINCOLN 

restoring  the  worst  of  them  to  their  homes  and  .  .  .  priv- 
ileges. Death  is  the  proper  penalty  and  atonement,  and 
will  be  enduringly  beneficial  in  its  influence."  ^^  Speed, 
Attorney  General  at  the  close  of  the  war,  thought  it  was 
"the  plain  duty  of  the  President  to  cause  criminal  prose- 
cutions to  be  instituted  .  .  .  against  some  of  those  who 
were  mainly  instrumental  in  inaugurating  and  most  con- 
spicuous in  conducting  the  late  hostilities."  He  would 
regard  it  as  a  "dire  calamity,"  he  said,  "if  many  whom 
the  sword  has  spared  the  law  would  spare  also."  ^^ 

Besides  many  speeches  to  this  effect  by  various  leaders 
in  Washington,  there  were  resolutions  of  State  legisla- 
tures, newspaper  editorials,  and  letters  from  individuals 
to  public  men  emphasizing  the  need  of  trying  the  more 
prominent  Southerners.  Lincoln,  of  course,  did  not 
share  these  views.  He  showed  clearly  in  his  last  Cabi- 
net meeting  and  on  other  occasions  a  disposition  to  deal 
kindly  with  the  enemy;  ^^  but  Johnson  declared,  in 
April,  1865,  that  "treason  must  be  made  odious"  and 
"traitors  must  be  punished."  ^^ 

Without  quoting  other  expressions  of  sentiment  along 
the  same  line,  it  is  sufficient  to  note  that  in  1865  the 
punishment  of  a  few  of  the  Confederate  leaders  seemed 
to  be  a  half-formed  policy  of  the  administration.  In- 
dictment and  trial  for  treason  was  the  method  commonly 
suggested. 

~~^  Diary  of  Gideon  Welles,  II,  43  (June  1,  1S64).  In  the  manu- 
script of  the  diary  the  words  "penalty  and"  bear  the  appearance  of 
later  insertion. 

"Speed  to  Johnson,  Jan.  4,  1866.  Frankfort  (Ky.)  Commonwealth, 
Jan.  16,  1866.  But  at  the  same  time,  in  particular  cases  convictions 
were   not   definitely   sought. 

"In  Lincoln's  last  Cabinet  meeting,  says  F.  W.  Seward,  all  thought 
that  there  should  be  "as  few  judicial  proceedings  as  possible."  "Kindly 
feelings  toward  the  vanquished  .  .  .  pcr\'aded  the  whole  discussion." 
(F.  W.  Seward,  Reminiscences  of  a  War-time  Statesman  and  Diplomat, 
254-257.) 

"Rhodes,  History  of  the  United  States,  V,  521. 


TREATMENT  OF  CONFEDERATE  LEADERS   101 


One  of  the  perplexing  questions  which  arose  in  this 
connection  was  whether  Confederate  prisoners  surren- 
dered by  Generals  Lee  and  Johnston  in  the  spring  of 
1865  and  released  on  parole  could  be  arrested  and  tried 
for  treason.  In  the  terms  of  surrender  allowed  by  Grant, 
Lee  and  his  army  were  permitted  to  return  to  their 
homes,  "not  to  be  disturbed  by  U.  S.  authority  so  long 
as  they  observe  their  paroles  and  the  laws  in  force  where 
they  may  reside,"  and  when  Johnston  surrendered  to 
Sherman,  this  pledge  was  repeated  as  to  his  army.^^ 
Since  General  Alexander  P.  Stewart  and  various  other 
Confederate  officers  and  soldiers  paroled  under  the  terma 
of  the  military  capitulations,  were  under  indictment,  the 
question  as  to  the  legal  effect  of  the  terms  of  surrender 
attracted  widespread  attention.  In  a  lengthy  and  pon- 
derous letter  to  President  Johnson,  Benjamin  F.  Butler 
argued  the  criminal  liability  of  Lee's  officers  and  men 
and  urged  that  they  be  tried  under  the  municipal  law.^* 
Such  a  course,  however,  met  the  emphatic  disapproval 
of  General  Grant.    He  wrote  as  follows  on  June  16,  1865: 

In  my  opinion  the  officers  and  men  paroled  at  Appomattox 
Court  House,  and  since  upon  the  same  terms  given  to  Lee,  can- 
not be  tried  for  treason  so  long  as  they  observe  the  terms  of 
their  parole.  This  is  my  understanding.  Good  faith,  as  well 
as  true  policy,  dictates  that  we  should  observe  the  conditions 
of  that  convention.  Bad  faith  on  the  part  of  the  government 
or  a  construction  of  that  convention  subjecting  officers  to  trial 
for  treason,  would  produce  a  feeling  of  insecurity  in  the  minds 
of  the  paroled  officers  and  men. 

In  an  endorsement  dated  August  26,   1867,  on  the 

"Ehodes,  History  of  the  United  States,  V,  126,  170. 
"Correspondence  of  B.  F.  Butler,  V,  602-605. 


102  THE  CONSTITUTION  UNDER  LINCOLN 

papers  regarding  the  treason  indictment  of  General 
Alexander  P.  Stewart  in  Tennessee,  Grant  quoted  the 
foregoing  letter  and  continued: 

The  terms  granted  by  me  met  with  the  hearty  approval  of 
the  President  at  the  time,  and  the  countrj'  generally.  The 
action  of  Judge  Underwood  in  Norfolk  [in  encouraging  prose- 
cutions] has  already  had  an  injurious  effect,  and  I  would  ask 
that  he  be  ordered  to  quash  all  indictments  found  against  pa- 
roled prisoners  of  war  and  to  desist  from  further  prosecution 
of  them.^^ 

Ordering  the  judge  to  quash  indictments!  This  is  a 
rather  amusing  illustration  of  the  militaiy  attitude,  but 
on  the  main  point  Grant's  position  was  consistently 
maintained,  and  it  apparently  exerted  a  controlling  in- 
fluence upon  the  administration.  Directly  after  the 
receipt  of  the  aforementioned  endorsement,  the  acting 
Attorney  General  wrote  to  the  district  attorney  in  Mid- 
dle Tennessee:  'T  have  to  say  in  deference  to  these  views 
of  the  General  of  the  Army,  to  which  this  office  takes  no 
legal  exception,  that  you  are  directed  not  to  press  a 
prosecution  for  treason  against  any  person  in  the  situa- 
tion of  Mr,  Stewart."  ^^  This  advice  harmonized  with 
an  earlier  instruction  sent  by  Attorney  General  Speed 
to  one  of  his  district  attorneys  to  the  effect  that  no 
officers  or  soldiers  paroled  by  the  capitulation  should  be 
arrested.^® 


"Enclosure  in  letter  of  Acting  Attorney  General  Binckley  to  U.  S. 
Atty.  for  Middle  Dist.,  Tenn.,  Aug.  28,  1867:  Attorney  General's 
papers. 

"Ibid.  A  Federal  grand  jury  at  Norfolk  in  1865,  though  indicting 
Jefferson  Davis  for  treason,  refused  to  proceed  ag:iinst  any  who 
had  surrendered  to  commanding  generals  on  parole  and  had  faithfully 
kept  the  terms  of  such  parole:     Rowland,  Davis,  VII,  142. 

"Attorney  General  Speed  to  L.  H.  Chandler,  U.  S.  Dist.  Atty.  at 
Norfolk,  Va.,  June  20,  18G5:  Attorney  General's  papers. 


TREATMENT  OF  CONFEDERATE  LEADERS   103 


III 

Though  a  few  other  leaders  were  placed  in  confine- 
ment, interest  naturally  centered  upon  President  Jeffer- 
son Davis,^^  whose  case  was  not  without  its  sensational 
features.  On  May  2,  1865,  President  Johnson  issued  a 
proclamation  offering  a  reward  for  Davis'  arrest.  In 
this  proclamation  mention  was  made  of  Davis'  sus- 
pected complicity  in  the  assassination  of  Lincoln,  and 
this  groundless  suspicion  (which  was  shared  by  many 
persons)  strongly  affected  the  official  attitude  toward 
the  Confederate  chieftain.  When  the  matter  was  re- 
ferred to  a  committee  of  the  lower  house,  the  investi- 
gators, in  a  long  document  which  included  much 
irrelevant  matter,  reported  "probable  cause  to  believe 

^  Among  the  Confederate  leaders  imprisoned  at  the  close  of  the 
war  were  Alexander  H.  Stephens,  Clement  C.  Clay,  Jr.,  John  A. 
Campbell,  Z.  V.  Vance,  John  H.  Reagan,  Joseph  Wheeler,  William 
Preston  Johnston,  F.  R.  Lubbock,  S.  P.  Mallory,  and  Burton  H. 
Harrison.  (For  a  fuller  list,  see  Oberholtzer,  History  of  the  United 
States  Since  the  Civil  War,  I,  11-14.)  After  short  periods  of  military 
imprisonment  these  men  were  released.  General  Robert  E.  Lee  was 
not  imprisoned.  Special  interest  attaches  to  the  case  of  Alexander  H. 
Stephens,  Vice  President  of  the  Confederacy.  While  in  custody  at 
Fort  Warren,  Boston  Harbor,  Stephens  wrote  a  very  long,  polite 
letter  to  President  Johnson,  petitioning  for  release  and  reviewing  his 
whole  political  career  and  creed.  He  had  been  brought  up,  he  said, 
in  the  "straitest  sect  of  the  Crawford-Troup-Jefferson  States'  rights 
school  of  politics,"  and  considered  that  reserved  sovereignty  resided 
with  the  people  of  each  State.  "If  my  position  in  the  Confederate 
Government,"  he  added,  "was  still  retained  after  I  clearly  saw  that 
the  great  objects  in  view  by  me  in  accepting  it  were  not  likely  to 
be  obtained  even  by  the  success  of  the  Confederate  Arms — after  I 
saw  that  the  Administration  of  the  New  Government  was  pursuing  a 
line  of  policy  leading  to  directly  opposite  results  to  those  I  was 
aiming  at,  .  .  .  it  was  mainly  with  the  .  .  .  hope  that  some  occasion 
might  arise  when  my  Counsels  might  be  of  more  avail  than  they  had 
been."  In  concluding,  he  pointed  out  that  the  war  was  inaugurated 
against  his  judgment,  and  that  he  accepted  its  results.  (Alexander 
H.  Stephens  to  President  Johnson,  Ft.  Warren,  June  8,  1865:  Johnson 
Papers.)     The  following  month  Stephens  was  released. 


104  THE  CONSTITUTION  UNDER  LINCOLN 

that  he  [Davis]  was  privy  to  the  measures  which  led  to 
the  commission  of  the  deed"  [i.e.,  the  murder  of  the 
President].  According  to  this  report  the  testimony  "jus- 
tified the  inference  that  the  murder  of  Mr.  Lincohi  was 
procured  by  the  use  of  money  furnished  by  the  Rich- 
mond government,"  but  the  report  was  based  upon  per- 
jured testimony  which  the  witnesses  themselves  later 
retracted  and  declared  to  be  false.^^ 

Though  killing  the  President,  or  conspiracy  in  connec- 
tion with  such  killing,  is  not  treason,^-  yet  the  determi- 
nation to  prosecute  for  treason  was  intensified  in  the 
case  of  Davis  by  those  unsupported  rumors  which  impli- 
cated him  in  the  assassination.  Davis  was  captured  on 
May  10,  1865,  in  Georgia  and  placed  in  confinement 
under  military  authority  at  Fortress  Monroe.  His  treat- 
ment while  in  prison,  though  not  inhumane,  was  not 
particularly  generous.  He  was  far  from  enjoying  the 
favorable  treatment  allowed  to  Aaron  Burr,  yet  the  com- 
plaints as  to  his  "sufferings,"  when  narrowed  down  to 
specific  details,  refer  chiefly  to  such  matters  as  noise, 
light  in  the  room  at  night,  and  the  denial  of  visitors.^^ 

"Gordon,  Jefferson  Davis,  Ch.  xx;  Rowland,  Davis,  VII,  160;  R.  F. 
Nichols,  "United  States  vs.  Jefferson  Davis,"  Am.  Hist.  Rev.,  XXXI, 
266. 

"  Hare  points  out  that  the  safeguards  of  the  Constitution  were  sus- 
pended when  the  conspirators  responsible  for  Lincoln's  assassination 
were  tried  by  military  commission.  He  then  suggests  that  assault  on 
the  President  with  intent  to  kill  should  be  declared  treason.  (Hare, 
American  Constitutional  Law,  II,  1126.)  To  do  this,  howev-er,  would 
necessitate  amending  the  Constitution,  in  which  the  crime  of  treason  is 
defined. 

"*  For  a  time  no  one  was  permitted  to  visit  Davis,  but  this  rule 
was  later  relaxed.  After  earnest  pleadings,  addressed  to  President 
Johnson  and  other  men  of  influence,  Mrs.  Davis  was  permitted  to 
visit  her  husband,  and  he  was  allowed  to  confer  with  his  counsel. 
While  the  Attorney  General  claimed  to  have  no  juri.sdiction  over 
Davis,  yet  he  gave  much  thought  to  the  question  of  his  detention  and 
trial,  and  received  weekly  reports  from  the  military  surgeon,  George 
E.  Cooper,  as  to  the  distinguished  prisoner's  health.     During  Davis' 


TREATMENT  OF  CONFEDERATE  LEADERS   105 

It  was  for  only  a  short  time  that  he  was  kept  in  shackles. 
In  the  later  stages  of  his  confinement  he  was  allowed 
considerable  freedom  within  the  fortress  grounds,  and 
was  given  airy  rooms  in  Carroll  Hall,  a  building  formerly 
used  for  officers'  quarters. 

During  this  imprisonment,  plans  were  being  matured 
for  Davis'  trial.-"*  When  the  question  was  discussed  in 
Johnson's  Cabinet,  the  chief  problem  for  decision  was 
whether  the  trial  should  be  by  military  commission  or 
before  the  ordinary  civil  tribunals.  Seward  favored  a 
military  trial  and  had  no  faith  in  the  civil  courts.  Welles 
doubted  whether  resort  to  a  military  commission  would 
be  justified,  and  favored  a  civil  trial.^^  Opinions  differed 
as  to  what  the  charge  should  be,  some  favoring  the 
charge  of  treason,  and  others,  murder.  As  suggestions 
poured  in  from  many  sources  it  became  evident  that 
those  who  were  most  eager  for  the  fallen  leader's  pun- 


confinement  his  correspondence  went  through  the  office  of  the  Secre- 
tary of  War.  The  mihtary  imprisonment  of  the  former  Confederate 
President,  which  covered  two  years,  was,  of  course,  a  severe  hardship. 
Had  he  been  under  the  civil  courts,  he  would  have  been  admitted  to 
bail   while  awaiting   trial. 

"Among  the  sources  which  the  writer  has  used  for  the  Davis  trial 
are  the  records  of  the  Federal  Circuit  Court  at  Richmond  (which  he 
examined  personally  and  of  which  transcripts  were  made  for  his 
use);  the  papers  and  letter  books  of  the  Attorney  General's  office; 
the  Johnson  papers;  the  Diary  of  Orville  H.  Browning;  the  Stanton 
papers;  the  "Records  and  Briefs  of  the  United  States  Supreme  Court"; 
the  original  docket  of  that  tribunal;  and  the  extensive  collection  of 
Davis  papers  edited  by  Dunbar  Rowland.  Turning  from  sources  to 
historical  studies,  one  finds  a  useful  survey  in  Armistead  C.  Gordon, 
Jefferson  Dams,  Ch.  xx,  and  a  definitive  treatment  in  an  article  en- 
titled "United  States  vs.  Jefferson  Davis,"  by  Roy  F.  Nichols  in  the 
Am.  Hist.  Rev.,  XXXI,  266-284.  See  also:  D.  K.  Watson,  "The 
Trial  of  Jefferson  Davis:  An  Interesting  Constitutional  Question," 
Yale  Law  Jour.,  XXIV,  669-676;  H.  H.  Hagan,  "United  States  vs. 
Jefferson  Davis,"  Sewanee  Rev.,  XXV,  220-225;  E.  P.  Oberholtzer, 
History  of  the  United  States,  Vol.  I;  Southern  Hist.  Soc.  Papers,  I, 
319-325;  John  J.  Craven,  Prison  Life  of  Jefferson  Davis. 

"Diary  of  Gideon   Welles,  II,  335-336. 


106  THE  CONSTITUTION  UNDER  LINCOLN 

ishment  wanted  a  military  tribunal;  while  others,  who 
desired  a  trial  but  at  the  same  time  wished  every  con- 
cession to  fair  play,  favored  a  civil  proceeding.  In  one 
of  the  many  letters  which  the  President  received  on  the 
subject  the  suggestion  was  made  that  the  "treason"  was 
committed  by  the  State  of  Mississippi  before  Davis 
"made  war";  that  in  obeying  the  order  of  that  State  he 
was  but  obeying  his  sovereign;  and  that,  having  recog- 
nized him  as  a  belligerent,  the  United  States  could  not 
consistently  charge  him  with  treason.  The  same  writer, 
however,  claimed  that  as  belligerent,  Davis  had  com- 
mitted various  atrocities,  such  as  the  Fort  Pillow  mas- 
sacre, and  that  for  these  "crimes"  he  could  be  tried  by 
court-martial.^^  The  decision  as  to  method  of  trial  was 
deferred  from  time  to  time,  and  gradually  the  idea  of  a 
military  proceeding  was  abandoned. 

The  hesitating  attitude  of  the  administration  was 
doubtless  due  in  part  to  serious  divergences  of  opinion 
throughout  the  country  with  regard  to  the  policy  toward 
Davis.  Greeley,  with  his  New  York  Tribune,  strong  in 
its  influence  upon  certain  sections  of  Northern  opinion, 
favored  a  generous  treatment,  and  was  emphatic  in  his 
advocacy  of  civil  over  military  tribunals  in  the  case  of 
political  offenders.  The  Chicago  Tribune,  on  the  other 
hand,  voiced  radical  opinion  in  urging  severe  punish- 

"  Former  Governor  E.  D.  Morgan  of  New  York  to  President  John- 
son, May  31,  1865  (referred  to  Attorney  General  Speed) :  Attorney 
General's  Papers.  This  argument  as  to  the  inappropriateness  of  the 
treason  charge  when  applied  to  acts  performed  by  a  recognized  belliger- 
ent government,  was  also  used  by  Davis'  friends.  On  this  subject 
James  M.  Mason  of  Virginia  wrote  to  Davis  as  follows:  "The  prin- 
ciple which  they  [the  Federal  authorities]  can  never  get  round  .  .  . 
is,  that  whatever  you  did  in  wielding  the  Army,  and  whatever  others 
did  in  counsel,  were  acts  of  war — immediately  and  all  the  time 
recognized  by  a  power  competent  in  law  to  conduct  War,  and  en- 
titling those  bona  fide  so  acting  to  all  immunities  arising  from  Acts 
of  War.  .  .  ."  (Mason  to  Davis,  Ap.  22,  1868:  Rowland,  Davis, 
VII,  239.) 


TREATMENT  OF  CONFEDERATE  LEADERS   107 

ment.^"^  Among  the  resolutions  of  State  legislatures  in 
Davis'  behalf,  those  of  Kentucky  are  particularly  worth 
noting.  After  announcing  the  principle  that  a  "brave 
people  should  ever  be  generous,  and  an  enlightened 
nation  never  know  revenge,"  the  legislature  resolved 
that  Davis  had  committed  no  crime  greater  than  that 
of  thousands  who  had  received  pardon,  and  that  his  con- 
viction was  not  necessary  "to  settle  the  legal  estimate 
of  treason"  nor  "to  determine  whether  secession  be 
treason  or  a  right."  ^^ 

IV 

After  many  delays,  the  Government  at  Washington 
finally  turned  its  attention  to  actual  preparations  for 
the  Davis  prosecution.  For  this  purpose  the  Govern- 
ment was  reenforced  by  an  unusual  array  of  legal  talent. 
Stanbery,  Attorney  General  in  1867,  finding  that  his 
ofiicial  duties  left  no  time  for  the  details  of  the  prosecu- 
tion, and  desiring  to  avoid  all  active  connection  with  it, 
appointed  William  M.  Evarts  as  the  leading  special 
counsel  for  the  United  States,  and  R.  H.  Dana,  Jr.  was 
made  his  associate. ^^  In  addition  to  these  distinguished 
lawyers,  the  Government  also  engaged  on  its  side  H.  H. 
Wells,  who  had  been  military  governor  of  Virginia,  and 
the  work  of  these  men  was  supplemented  by  the  official 
activities  of  S.  Ferguson  Beach  and  L.  H.  Chandler,  who 
served  at  different  times  as  Federal  district  attorney  at 
Richmond.  When,  on  July  18,  1868,  Evarts  himself 
became  Attorney  General,  the  situation  was  only  slightly 
changed,  for  in  this  new  capacity  he  still  continued  his 

*' Chicago  Tribune,  Oct.  3,  1865,  p.  2. 
"  Resolution  of  Kentucky  Legislature,  Dec.  8,  1865. 
"In  the  earlier  stages  of  the  case,  J.  II.  Clifford  and  L.  H.  Rousseau 
acted  as  special  counsel  for  the  Government. 


108  THE  CONSTITUTION  UNDER  LINCOLN 

general  direction  of  the  prosecution.  The  appointment 
of  such  special  counsel,  involving  a  considerable  outlay 
of  money,  and  the  frequent  conferences  and  correspond- 
ence which  took  place  on  the  subject,  indicate  that  the 
trial  of  Davis  was  a  matter  in  which  the  administration 
took  an  active  interest. 

Certain  indictments  against  Davis  that  were  brought 
at  Norfolk  and  at  Washington  in  1865  were  dropped; 
but  on  May  10,  1866,  he  was  again  indicted  for  treason 
by  the  grand  jury  in  the  United  States  Circuit  Court  at 
Richmond,  Virginia.  A  year  ensued  before  any  steps 
were  taken  to  prosecute  this  charge,  this  delay  being  due 
to  the  military  rule  which  prevailed  in  Virginia,  the  un- 
willingness of  Chief  Justice  Chase  to  take  charge  of  the 
case,  and  the  uncertainty  of  policy  as  to  what  should  be 
done  with  the  distinguished  prisoner. 

In  order  that  the  Federal  Court  at  Richmond  obtain 
custody  of  Davis,  it  was  necessary  to  release  him 
from  the  military  authorities.  This  was  done  by  habeas 
corpus  writ  issued  by  the  Federal  Circuit  Court  at  Rich- 
mond to  General  Henry  S.  Burton,  in  charge  of  the 
prisoner.^"  The  importance  of  this  great  writ  is  illus- 
trated by  the  fact  that  by  means  of  it  Bayis'  imprison- 
ment under  executive  and  military  power  was  terminated 
through  the  normal  operation  of  a  judicial  process. 

On  May  13,  1867,  as  the  record  reads,^^  "the  said 
Jefferson  Davis  was  led  to  the  bar  in  custody  of  the 
marshal,  and,  the  prosecution  not  being  ready  for  trial, 
the  defendant,  through  his  counsel,  .  .  .  moved  that  he 
be  admitted  to  bail,  and  there  being  no  objection  on  the 


"The  habeas  corpus  writ  directing  the  release  of  Davis  from  military 
custody,  and  General  Burton's  return  thereto,  are  given  in  Rowland, 
Datns,  VII,  168,  169.  For  proceedings  in  the  President's  Cabinet  on 
this  subject,  see  "Notes  of  Col.  W.  0.  Moore,"  Am.  Hist.  Rev.,  XIX,  99. 

"Records  of  the  Circuit  Court  of  the  United  States,  Richmond,  Va. 


TREATMENT  OF  CONFEDERATE  LEADERS  109 

part  of  the  Government,  Mr.  Davis  gave  bond  in  the 
sum  of  $100,000  to  appear  in  court  on  November  4."  ^^ 

"The  prosecution  not  being  ready  for  trial" — this  was 
always  the  obstacle  in  the  Davis  proceedings.^^  Again 
in  November,  1867,  the  Government  was  unready,  and 
the  case  was  "continued."  Elaborate  plans  were  by  this 
time  on  foot  for  the  preparation  of  a  new  indictment. 
According  to  arrangements  made  by  the  Government's 
lawyers.  General  Wells  and  District  Attorney  Chandler 
conducted  the  day-to-day  examination  of  witnesses  be- 
fore the  grand  jury,  and  the  evidence  so  collected,  in 
connection  with  documents  drawn  from  the  Confeder- 
ate archives  at  Washington,  was  to  be  placed  before 
Evarts  and  Dana,  whose  task  it  was  to  draw  the  indict- 
ment.^^ On  March  26,  1868,  the  grand  jury  "appeared 
in  court  and  upon  their  oaths  presented  'A  Bill  of  In- 
dictment against  Jefferson  Davis  for  treason,  a  true 
bill.' " 

In  this  lengthy  and  tiresome  indictment  the  charge  is 
treason  under  the  Act  of  1790  and  the  specifications 
relate  to  various  acts  of  a  military  sort  and  otherwise, 
connected  with  the  war.    It  reads  in  part  as  follows: 

The  grand  jurors  .  .  .  upon  their  oaths  .  .  .  respectively 
,  .  .  find  and  present  that  Jefferson  Davis,  late  of  the  city  of 
Richmond  in  the  county  of  Henrico  and  District  of  Virginia, 

"  Among  the  sureties  on  Davis'  bond  were  Gerrit  Smith,  Horace 
Greeley,  and  Cornelius  Vanderbilt. 

"  One  reads  between  the  lines  of  the  proceedings  considerable  em- 
barrassment on  the  part  of  the  Government  when  faced  with  the 
problem  of  actually  trying  Davis  on  the  treason  charge.  The  record 
of  June  5,  1866,  in  the  Circuit  Court  at  Richmond  shows  the  counsel 
for  the  defense  vigorously  pressing  the  question  as  to  what  the  gen- 
tlemen representing  the  United  States  proposed  to  do  with  reference 
to  the  indictment  for  treason  then  pending,  while  the  prosecution  re- 
plied with  excuses  for  delaying  the  trial.  See  Rowland,  Davis,  VII, 
152-153. 

"Evarts  to  Chandler,  Feb.  18,  1868:  Attorney  General's  papers. 


110  THE  CONSTITUTION  UNDER  LINCOLN 

Gentleman,  being  a  citizen  .  .  .  of  .  .  .  the  United  States 
.  .  ,  and  owing  allegiance  and  fidelity  to  the  said  United 
States,  not  being  mindful  of  his  said  duty  of  allegiance,  and 
wickedly  devising  and  intending  the  peace  of  the  United  States 
to  disturb,  and  to  excite  and  levy  war  against  the  said  United 
States, on  the  first  day  of  June  in  the  year  [1861  J, at  Richmond 
.  .  .  did  .  .  .  traitorously  collect  and  assist  in  collecting  great 
numbers  of  persons  armed,  equipped  and  organized  as  military 
forces  for  the  purpose  of  levying  war  against  the  said  United 
States,  and  did  assume  the  command-in-chief  of  the  said 
forces,  and  with  said  forces  did  unlawfully  and  traitorously 
take  forcible  possession  of  the  said  city  of  Richmond  and  the 
said  county  of  Henrico.  .  .  .  That  the  said  Jefferson  Davis 
.  .  .  did  maliciously  and  traitorously  levy  war  against  the  said 
United  States  and  did  commit  the  crime  of  treason  against  the 
said  United  States  .  .  .  contrary  to  the  .  .  .  statute  .  .  .  ap- 
proved on  the  thirteenth  day  of  April,  [1790]. 

That  on  the  first  day  of  August  in  the  year  .  .  .  [1862],  a 
great  many  persons  whose  names  are  to  the  grand  jurors  un- 
known, to  the  number  of  [100,000]  and  more,  were  assembled, 
armed,  .  .  .  equipped  and  organized  as  military  forces  .  .  . 
and  were  maliciously  and  traitorously  engaged  in  levying  war 
against  the  said  United  States  in  .  .  .  Virginia  .  .  .  and  in 
.  .  .  North  Carolina,  South  Carolina,  Georgia,  Florida,  Ala- 
bama, Mississippi,  Louisiana,  Texas,  Arkansas,  Tennessee,  and 
Missouri.  And  that  the  said  Jefferson  Davis  .  .  ,  did  send 
to  and  procure  for  the  said  forces  munitions  of  war,  provisions, 
and  clothing,  and  did  give  to  said  forces  information,  counsel, 
and  advice  ...  to  assist  them  in  the  levying  of  war  as  afore- 
said.''' 


"This  indictment  was  copied  by  the  writer  from  the  original  in  the 
files  of  the  Circuit  Court  of  the  United  States  at  Richmond.  The 
whole  document  is  so  elaborate  and  verbose  as  to  be  unreadable. 
It  is  given  in  full  in  Rowland,  Davis,  VII,  179-195.  The  indictment 
was  found  on  the  testimony  of  Robert  E.  Lee,  James  A.  Seddon,  John 
Letcher,  George  Wythe  and  others  by  a  grand  jury  composed  of 
recently  emancipated  negroes  and  whites  who  could  take  the  "test 
oath." 


TREATMENT  OF  CONFEDERATE  LEADERS   111 

The  indictment  also  mentions  the  first  battle  of 
Manassas,  and  Davis  is  charged  with  having  traitor- 
ously cooperated  with  Lee,  Benjamin,  Breckinridge,  and 
other  specified  Confederate  leaders.  His  address  of 
February  10,  1864,  to  Confederate  soldiers,  and  his  ac- 
ceptance of  the  oflSce  of  Commander-in-Chief  of  the 
forces  of  the  Confederate  States  are  also  recited. 

It  is  noteworthy  that  instead  of  treason  being  charged 
under  the  act  of  July  17,  1862,  which  allowed  fine  and 
imprisonment  as  an  alternative  to  the  death  penalty, 
the  charge  was  brought  under  the  Treason  Act  of  1790; 
so  that  if  conviction  had  been  obtained  the  penalty 
would  necessarily  have  been  death.  'In  that  case,  pardon 
alone  would  have  saved  Davis'  life.  This  fact  made 
conviction  less  likely. 


In  spite  of  the  gravity  of  the  offense  with  which  he 
was  charged,  Davis  was  again  admitted  to  bail.  Being 
permitted  to  choose  his  counsel,  he  had  selected  Charles 
O'Conor,  William  B.  Reed,  R.  Ould,  and  James  Lyons. 
These  men  had  singled  out  one  constitutional  point 
above  all  others  as  the  principal  basis  for  the  defense. 
They  took  care  to  have  Davis'  oath  to  support  the  Con- 
stitution of  the  United  States  (taken  in  1845  as  a  mem- 
ber of  the  House  of  Representatives)  made  a  part  of  the 
record.  Then,  in  a  paper  filed  with  the  Court,  they  de- 
clared that  the  defendant  alleged  in  bar  of  any  pro- 
ceedings upon  the  said  indictment  the  penalties  and 
disabilities  denounced  against  him  in  the  third  section  of 
the  Fourteenth  Amendment  to  the  Constitution,  "and  he 
insists  that  any  judicial  pain,  penalty  or  punishment 
upon  him  for  such  alleged  offense  is  not  admissible  by 
the  Constitution  and  laws  of  the  United  States." 


112   THE  CONSTITUTION  UNDER  LINCOLN 

The  Fourteenth  Amendment  contains  the  following 
provision : 

No  person  shall  be  a  Senator  or  Representative  in  Congress, 
or  elector  of  President  and  Vice  President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State, 
who,  having  previously  taken  an  oath,  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But 
Congress  may  by  a  vote  of  two-thirds  of  each  House,  remove 
such  disability. 

It  was  arguable  that  the  ease  of  such  leaders  as  Davis 
had  already  been  dealt  with  in  a  constitutional  amend- 
ment which  took  into  view  the  violation  of  a  Federal 
oath,  and  that  disability  from  office-holding  was  in  the 
nature  of  a  punishment  for  the  offense  of  violated  alle- 
giance. Not  death,  nor  even  fine  and  imprisonment,  was 
indicated  as  the  penalty,  but  only  disability  from  holding 
office,  and  this  disability  was  removable  by  action  of 
Congress.  Any  further  punishment  seemed  to  be  out  of 
harmony  with  the  amendment,  and  the  disabilities 
named  therein  would  indeed  seem  absurd  if  the  purpose 
were  to  prosecute  the  offenders  for  treason  under  the 
old  act  of  1790  and  inflict  the  penalty  of  death. ^^ 

''The  issue  hinged  upon  the  question  as  to  whether  the  disiibilitj' 
feature  of  the  Fourteenth  Amendment  amounted  to  a  punishment. 
Davis'  counsel  argued  that  it  did,  and  that  this  was  the  only  punish- 
ment that  could  be  legally  mflicted;  for  to  add  to  the  existing  penalty 
would  be  an  ex  post  jacto  provision,  increasing  the  punishment  of  a 
crime  previously  committed.  Dana  replied  for  the  Government  that 
the  amendment  did  not  inflict  a  punishment,  but  established  "a  gen- 
eral permanent  provision  respecting  classes  of  persons  entitled  to 
ofTice,"  and  that  it  did  not  repeal  existing  penalties  for  treason. 
Though  this  point  was  never  settled  by  the  Supreme  Court,  j'et  Chief 
Justice  Chase  put  on  record  his  opinion  that  the  indictment  should 


TREATMENT  OF  CONFEDERATE  LEADERS   113 

In  contrast  to  the  confident  tone  on  the  part  of  Davis' 
counsel,  one  finds  a  certain  weakening  among  the  Gov- 
ernment's lawyers.  On  August  24,  1868,  while  the  prose- 
cution was  still  pending,  Dana  wrote  to  Evarts,  then 
Attorney  General,  expressing  grave  misgivings  as  to 
the  wisdom  of  proceeding  further  with  the  prosecution. 
Because  of  the  important  points  of  law  and  policy  which 
he  touched  upon  it  may  be  well  to  note  rather  fully  the 
trend  of  his  comments.^"^ 

Dana  began  his  letter  by  pointing  out  how  much  his 
mind  had  been  moved  from  the  first  by  doubts  as  to  the 
expediency  of  trying  Davis  at  all.  At  length,  he  said, 
these  doubts  had  ripened  into  convictions.  He  could  see 
no  good  reason  why  the  Government  should  make  any 
question  whether  the  late  Civil  War  was  treason  and 
whether  Davis  took  any  part  in  it,  submitting  questions 
of  that  nature  to  the  decision  of  a  petit  jury  at  Rich- 
mond. The  only  constitutional  question  seemed  to  be 
whether  a  levying  of  war  which  would  otherwise  be 
treason  was  relieved  of  that  character  by  the  fact  that 
it  took  the  form  of  secession  from  the  Union  by  State 
authority — in  other  words,  whether  the  secession  of  a 
State  was  a  constitutional  right.     That  issue,  however, 

have  been  quashed  and  that  further  proceedings  should  have  been  de- 
clared to  be  baiTed  by  the  amendment.  (Rowland,  Davis,  VII,  200- 
227.)  Strangely  enough,  it  has  been  maintained  that  this  disability 
feature  of  the  Fourteenth  Amendment  was  not  confined  to  the  Civil 
War,  and  is  still  in  force.  When,  during  the  World  War,  the  Socialist 
Congressman,  Victor  L.  Berger,  was  excluded  from  the  House  of  Rep- 
resentatives, the  committee  reporting  on  his  case  held  section  3  of 
the  Fourteenth  Amendment  to  be  effective  against  him.  For  able 
comments,  see  Chafee,  Freedom  of  Speech,  322  et  seq. 

"  This  notable  letter  by  Dana  is  found  in  the  Attorney  General's 
papers  in  the  Library  of  Congress.  A  copy  was  sent  to  President 
Johnson,  who  wrote  thereon  the  following  indorsement:  "Richard 
Dana's  opinion  in  ref.  to  Jeff.  Davis'  release.  This  opinion  must  be 
filed  with  care.  A.  J."  (Johnson  Papers,  Vol.  144,  No.  22377.)  Dr. 
Nichols,  in  his  article  above  cited,  shows  that  Clifford  had  doubts 
similar  to  those  of  Dana.     {Amer.  Hist.  Rev.,  XXXI,  274.) 


114  THE  CONSTITUTION  UNDER  LINCOLN 

he  supposed  to  be  already  settled.  The  Supreme  Court 
in  the  Prize  Cases  had  held  that  acts  of  States  could  not 
be  pleaded  as  justification  for  the  war  and  had  no  legal 
effect  on  the  character  of  the  war.  He  regarded  it  as  a 
matter  of  history  that  the  law-making  and  executive  de- 
partments had  treated  the  secession  and  the  war  as 
treason. 

The  only  question  of  fact  submitted  to  the  jury  would 
be  whether  Davis  took  any  part  in  the  war.  This  he  did 
not  consider  a  fact  appropriate  for  the  jury  to  decide. 
The  indictment  would  be  tried  in  a  region  formerly 
within  enemy's  territory,  a  region  which  was  not  yet 
restored  to  the  exercise  of  all  its  political  functions  and 
where  the  fires  were  not  extinct.  It  would  only  require 
one  juror  to  defeat  the  Government  and  give  Jefferson 
Davis  and  his  favorers  a  triumph.  Such  a  favorer  might 
get  upon  the  jury,  or  a  fear  of  personal  violence  or 
ostracism  might  be  enough  to  induce  at  least  one  juror 
to  withhold  assent  to  a  verdict  of  conviction.  This  pos- 
sible result,  said  Dana,  would  be  most  humiliating  to 
the  Government,  and  none  the  less  so  from  the  fact  that 
it  would  be  absurd. 

Then,  too,  the  question  of  the  death  penalty  pre- 
sented a  difl&culty.  It  would  be  beneath  the  dignity  of 
the  Government  and  of  the  issue  to  inflict  a  minor  pun- 
ishment; and  as  to  a  sentence  of  death,  Dana  felt  sure 
that  after  the  lapse  of  time  which  had  occurred  since  the 
war  the  people  would  not  desire  to  see  it  enforced. 

By  pursuing  the  trial,  Dana  urged,  the  Government 
could  get  only  a  reaffirmation  by  a  circuit  court  at  7iisi 
prius  of  a  rule  of  public  law  already  settled  for  this 
country  in  every  way  that  such  a  matter  could  be  set- 
tled. In  the  needless  pursuit  of  this  object,  the  Gov- 
ernment would  be  giving  to  a  jury  within  the  region  of 
the  "rebellion"  a  chance  to  disregard  the  law  when  an- 


TREATMENT  OF  CONFEDERATE  LEADERS    115 

nounced.  The  jury  would  also  have  the  opportunity  to 
ignore  the  fact  that  Davis  took  any  part  in  the  late 
Civil  War.  To  assume  the  risk  of  such  an  absurd  and 
discreditable  issue  of  a  great  state  trial  for  the  sake  of 
a  verdict,  which,  if  obtained,  would  settle  nothing  new, 
either  in  law  or  fact,  and  which  would  probably  never 
be  executed,  seemed  to  Dana  extremely  unwise. 

Attorney  General  Evarts  transmitted  Dana's  letter  to 
President  Johnson, ^^  and  there  seems  little  doubt  that 
the  views  so  expressed  had  influence  upon  the  adminis- 
tration in  its  attitude  toward  the  Davis  proceedings. 


VI 

The  later  phases  of  the  Davis  case  may  be  briefly 
stated.  The  defense  moved  the  quashing  of  the  indict- 
ment on  the  ground  of  its  inconsistency  with  the  dis- 
ability clause  of  the  Fourteenth  Amendment,  and  the 
Government  opposed  the  motion. ^^  On  the  constitu- 
tional point  involved  in  connection  with  the  motion  to 
quash,  the  court  disagreed  and  certified  their  disagree- 
ment to  the  Supreme  Court  of  the  United  States.  At  last 
it  seemed  that  this  important  case,  or  rather  a  particular 
phase  of  it,  was  about  to  be  heard  by  the  highest  tri- 
bunal of  the  land;  but  on  December  25,  1868,  an  uncon- 
ditional pardon  of  all  who  had  participated  in  the  war 
was  issued  by  the  President,  and  shortly  afterward  the 

^  Dr.  Nichols  points  out  that  this  letter  was  read  in  Cabinet  on 
November  6,  1868.     {Am.  Hist.  Rev.,  XXXI,  281.) 

^  These  last  proceedings  on  the  motion  to  quash  the  indictment  were 
presided  over  by  Chief  Justice  Chase  who  had,  in  the  earlier  stages, 
refused  to  preside  over  the  Circuit  Court  in  Virginia  because  of  the 
military  power  exercised  in  that  State.  It  would  be  unbecoming  in  the 
Chief  Justice  of  the  United  States,  he  thought,  to  preside  over  a 
quasi-military  court.  (Rowland,  Davis,  VII,  157.)  Some  attributed 
this  attitude  of  Chase  to  a  reluctance  to  preside  at  Davis'  trial: 
ibid.,  239. 


116   THE  CONSTITUTION  UNDER  LINCOLN 

indictment  was  dismissed  by  the  Circuit  Court  at  Rich- 
mond, and  the  case  was  also  dropped  from  the  docket  of 
the  Supreme  Court  at  Washington. ■*"  Following  two 
years  of  imprisonment,  and  nineteen  months  on  bail, 
Jefferson  Davis  was  at  last  a  free  man.  His  persistent 
demand,  however,  that  his  case  be  tried,  was  not  com- 
plied with. 

Looking  back  over  the  various  phases  of  this  abortive 
prosecution,  one  finds  it  hard  to  understand  why  serious 
efforts  should  have  been  made  to  obtain  a  conviction  of 
Davis.  The  usual  practice  in  such  cases  is  amnesty  for 
political  offenses,  and  in  fact  this  policy  of  amnesty  had 
been  proclaimed  and  adhered  to  with  regard  to  those 
who  had  supported  the  Confederacy.  The  proclamations 
of  amnesty  prior  to  December,  1S68,  had  been  qualified 
by  certain  conditions  and  exceptions,  but  thousands  of 
special  pardons  were  granted  to  those  excluded  from  the 
general  proclamations.  Finally,  on  Christmas  day,  1868, 
came  an  amnesty  proclamation  which  covered  every  one. 
Other  indictments  for  treason  were  dismissed,  and  the 
active  promotion  of  Davis'  prosecution  up  to  the  time 
of  the  proclamation  of  unconditional  amnesty  was  un- 
usual. If  at  any  time  the  word  had  been  sent  from  Wash- 
ington to  move  the  dismissal  of  the  indictment,  it  would 
have  been  dismissed,  but  instead  the  administration  con- 
tinued its  efforts  toward  a  prosecution.  As  Dr.  R.  F. 
Nichols'*^  has  shown  in  his  excellent  study  of  this  sub- 

*"0n  the  unpublished  docket  of  the  United  States  Supreme  Court, 
under  date  of  February  19,  1869,  there  is  this  entry:  "On  motion 
of  the  Attorney  General,  Adjudged  to  be  dismissed."  (Case  327,  Dec. 
term,  1868,  Docket  1868,  Sup.  Court  of  U.  S.) 

"After  having  made  an  independent  study  of  the  Davis  case  from 
the  sources,  the  author  was  fortunately  able,  when  on  the  point  of 
sending  his  book  to  the  press,  to  use  in  the  final  revision  the  scholarly 
and  exhaustive  article  by  Dr.  Roy  Franklin  Nichols  in  the  Am.  Hist. 
Rev.,  XXXI,  266-284.  For  a  full  discussion  of  the  subject  one  should 
read  this  article. 


TREATMENT  OF  CONFEDERATE  LEADERS   117 

ject,  the  Davis  case  was  entangled  in  Reconstruction 
politics;  and  the  influence  of  the  radicals  in  Congress 
was  a  factor  which  tended  to  prevent  an  earlier  release. 
Johnson,  however,  with  certain  of  his  Cabinet  supporters, 
did  not  hesitate  to  brook  these  radicals,  and  they  were 
mindful  of  the  fact  that  in  various  quarters  the  political 
effect  of  universal  amnesty  would  be  desirable;  while 
continued  efforts  to  prosecute  the  case  involved  the  like- 
lihood of  an  adverse  decision  by  the  Supreme  Court  or  an 
acquittal  by  a  Virginia  jury.  Governmental  success 
before  both  court  and  jury  seemed  a  remote  possibility 
(except,  perhaps,  to  such  a  man  as  John  C.  Under- 
wood ^^) ;  but  such  success  would  itself  have  been  most 
embarrassing,  for  it  would  have  involved  the  death 
penalty  for  the  President  of  the  Confederacy.  In  the 
strong  probabihty  of  presidential  pardon,  the  conviction 
of  Davis,  obtained  at  considerable  cost  and  with  great 
irritation,  would  have  been  futile.  Release  by  the  dis- 
missal of  the  indictment  seemed  the  only  way  out;  and 
as  we  have  seen  in  our  general  survey  of  the  treason 
cases,  this  was  the  regular  prpcedure,^^ 

"John  C.  Underwood,  Federal  district  judge  in  Virginia,  had  pro- 
moted the  indictment  against  Davis,  and  had  been  active  in  procuring 
confiscations  in  Virginia.  His  attitude  seems  not  to  have  been  charac- 
terized by  judicial  detachment.  Had  Davis  been  brought  to  trial,  it 
vi-ould  presumably  have  been  before  Judge  Underwood  and  Chief  Justice 
Chase  in  the  Circuit  Court  at  Richmond.  R.  F.  Nichols,  op.  cit., 
pp.  267,  269. 

"Even  after  Johnson's  proclamation  of  full  pardon  and  amnesty,  all 
who  had  sworn  officially  to  support  the  Constitution  and  had  later 
engaged  in  the  "rebellion"  were  under  the  disqualification  of  the  Four- 
teenth Amendment  as  to  State  or  Federal  office-holding.  In  1898 
Congress  removed  the  existing  disability,  though  the  wording  of  the  act 
seemed  to  recognize  that  similar  disabilities  would  apply  to  a  possible 
future  insurrection  or  rebellion.    U.  S.  Stat,  at  Large,  XXX,  432. 


CHAPTER  VI 

THE   POWER   TO   SUSPEND   THE    HABEAS   CORPUS   PRIVILEGE 

I.   Statement  of  the  constitutional  problem  regarding  the 
suspension  of  the  privilege  of  the  habeas  corpus  writ 
II.    Principal  arguments  for  and  against  the  President's 
power  of  suspension 

III.  Ambiguous  action  of  Congress 

IV.  Inconclusive  character  of  the  Civil  War  precedent 
V.  Present  status  of  the  controversy 

This  chapter  and  the  three  following  deal  with  topics 
that  are  virtually  parts  of  the  same  subject.  The  pres- 
ent chapter  has  to  do  with  the  President's  power  of  sus- 
pending the  habeas  corpus  privilege  as  against  that  of 
Congress;  Chapters  VII  and  VIII  will  treat  the  actual 
measures  resulting  from  the  suspension  and  involving 
military  control  over  civilians,  while  the  succeeding  chap- 
ter will  be  devoted  to  the  protection  of  officials  from  ju- 
dicial liability  for  acts,  othenv^ise  unwarranted,  which 
were  committed  during  the  period  of  suspension. 


The  question  as  to  whether  Congress  or  the  President 
has  the  authority  to  suspend  the  privilege  of  the  writ  is 
one  of  the  most  famous  and  familiar  controversies  in 
our  constitutional  history.  Perhaps  no  other  feature  of 
Union  policy  was  more  widely  criticized  nor  more  stren- 
uously defended,  and  the  whole  subject  has  been  elabor- 
ately debated  by  statesmen,  editors,  jurists,  generals, 
pamphleteers,  and  historians. 

118 


THE  HABEAS  CORPUS  PRIVILEGE       119 

The  provision  of  the  Constitution  reads  as  follows: 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  pub- 
lic safety  may  require  it.^ 

Plainly  the  intention  is  that,  in  the  specified  emergen- 
cies— rebellion  or  invasion — this  vital  privilege  may,  for 
the  preservation  of  public  safety,  be  suspended.  But 
various  questions  immediately  arise.  Who  is  to  judge  of 
the  existence  of  rebellion  or  invasion  within  the  mean- 
ing of  the  Constitution?  Recognizing  that  the  privilege 
is  to  be  suspended  only  when  its  continued  maintenance 
would  menace  public  safety,  who  is  to  determine  when 
that  point  has  been  reached?  Does  the  silence  of  the 
Constitution  regarding  the  authority  to  suspend  signify 
that  the  question  was  left  open,  or  does  a  fair  construc- 
tion require  one  to  conclude  that  the  power  to  suspend 
was  understood  by  the  framers  to  rest  with  Congress  and 
that  an  explicit  statement  was  avoided  only  because  this 
point  of  law  seemed  already  estabhshed  beyond  a  reason- 
able doubt?  If  not  an  exclusive  congressional  function, 
could  the  suspending  power  be  considered  "concurrent" 
as  between  the  President  and  Congress,  so  that  the  Presi- 
dent might  act  in  the  absence  of  congressional  provision? 

Still  other  questions  would  arise,  assuming  that  the 
foregoing  had  been  settled,  as,  for  instance,  whether 
Congress  could  delegate  the  power  to  the  President, 
whether  the  President  could  delegate  it  to  his  subordi- 
nates, and  whether  a  rebellion  in  one  part  of  the  country* 
could  justify  the  suspension  in  a  remote  and  loyal  part. 
Such,  in  broad  outline,  were  the  main  points  at  issue  in 
this  much-discussed  problem. 

*t7.  S.  Constitution,  Art.  I,  sec.  9,  par.  2. 


120  THE  CONSTITUTION  UNDER  LINCOLN 


II 

In  support  of  the  view  that  the  suspending  power  lies 
exclusively  in  Congress,  Chief  Justice  Taney's  well- 
known  decision  in  the  Merryman  case  stands  as  perhaps 
the  most  vigorous  exposition. 

The  details  of  the  case,  which  are  reserved  for  later 
consideration,  mark  it  as  a  typical  instance  of  conflict 
between  the  military  and  judicial  authorities.^  The 
essential  fact  was  that  a  general  had  resisted  the  execu- 
tion of  the  writ  of  habeas  corpus  and  that  in  so  doing  he 
appealed  to  the  President's  suspending  order.  The  Chief 
Justice  in  "filing"  his  opinion  argued  strenuously  that  the 
President  had  no  lawful  power  to  issue  such  an  order. 
English  and  colonial  precedents  were  adduced  to  support 
this  contention.  The  colonists  were  shown  to  have  been 
extremely  jealous  of  executive  usurpation,  while  in  Eng- 
land no  power  short  of  Parliament  could  authorize  the 
suspension.  Invoking  the  rule  of  construction  according 
to  context,  Taney  pointed  out  that  the  provision  regard- 
ing habeas  corpus  appears  in  that  portion  of  the  Consti- 
tution which  pertains  to  legislative  powers.  Story  was 
quoted  as  authority  for  the  view  that  Congress  has  the 
power  to  suspend  as  well  as  the  exclusive  right  to  judge 
of  the  exigency  requiring  suspension.  Marshall's  opinion 
in  the  Bollman  and  Swartwout  case  was  cited  to  the  efi'ect 
that  "if  ...  the  public  safety  should  require  the  sus- 
pension it  is  for  the  legislature  to  say  so."  '  Since  the 
courts  were  uninterrupted,  Taney  maintained  that  any 
suspected  treason  should  have  been  reported  to  the  dis- 
trict attorney  and  dealt  with  by  judicial  process.     The 

'Ex  parte  Merryman,  17  Fed.  Cas.  144.    See  infra,  pp.  161-162. 
•4  Cranch  101. 


THE  HABEAS  CORPUS  PRIVILEGE       121 

overriding  of  such  process  in  loyal  parts  of  the  country- 
he  denounced  as  military  usurpation.  If  such  usurpation 
be  permitted,  he  said,  "the  people  of  the  United  States 
are  no  longer  living  under  a  government  of  laws;  but 
every  citizen  holds  life,  liberty  and  property  at  the  will 
and  pleasure  of  the  army  officer  in  whose  military  district 
he  may  happen  to  be  found." 

Putting  the  matter  solemnly  up  to  the  President,  he 
declared  that  it  would  "remain  for  that  high  officer,  in 
fulfillment  of  his  constitutional  obligation  to  'take  care 
that  the  laws  be  faithfully  executed,'  to  determine  what 
measures  he  will  take  to  cause  the  civil  process  of  the 
United  States  to  be  respected  and  enforced." 

The  extent  to  which  President  Lincoln  stood  in  need 
of  this  solemn  admonition  may  best  be  judged  by  his  atti- 
tude at  the  time  the  suspension  was  authorized.  As  a 
matter  of  fact  few  measures  of  the  Lincoln  administra- 
tion were  adopted  with  more  reluctance  than  this  sus- 
pension of  the  citizen's  safeguard  against  arbitrary  arrest. 
This  reluctance  appears  in  the  fact  that  only  a  qualified 
suspension  was  ordered  in  1861,  that  the  military  au- 
thorities were  enjoined  to  use  the  power  sparingly,  that 
the  action  was  taken  during  a  recess  of  Congress,  and 
that  an  early  opportunity  was  taken  to  lay  the  matter 
before  the  special  session  of  Congress  convened  for  the 
emergency  in  the  summer  of  '61. 

Lincoln's  secretaries  have  preserved  for  us  the  original 
autograph  draft  of  his  message  to  this  special  session,  and 
it  is  an  instructive  exercise  to  compare  this  draft  with 
the  revised  and  published  form  of  the  message.  Selected 
portions  of  the  earlier  and  later  forms  of  the  message  are 
placed  in  parallel  columns  below:  * 


*Nicolay  and  Hay,  Lincoln,  IV,  176;  Richardson,  Message*  .  .  .  of 
the  Presidents,  VI,  24. 


122   THE  CONSTITUTION  UNDER  LINCOLN 

Original  Autograph  Published  Form 


Soon  after  the  first  call  for 
militia,  /  felt  it  my  duty  to 
authorize  the  commanding 
general,  in  proper  cases  .  .  . 
to  suspend  the  privilege  of  the 
writ  of  habeas  corpus.  .  .  . 
At  my  verbal  request,  as  well 
as  by  the  general's  own  in- 
clination, this  authority  has 
been  exercised  but  very  spar- 
ingly. Nevertheless,  .  .  .  I 
have  been  reminded  from  a 
high  quarter  that  one  who  is 
sworn  to  ''take  care  that  the 
laws  be  faithfully  executed" 
should  not  himself  be  one  to 
violate  them.  Of  course  / 
gave  some  consideration  to 
the  questions  of  power  and 
propriety  before  I  acted  in 
this  matter.  The  whole  of  the 
laws  which  I  was  sworn  to 
[execute]  were  being  resisted 
...  in  nearly  one-third  of 
the  States.  Must  I  have  al- 
lowed them  to  finally  fail  of 
execution?  Are  all  the  laws 
but  one  to  go  unexecuted,  and 
the  Government  itself  go  to 
pieces,  lest  that  one  be  vio- 
lated? .  .  .  But  ...  I  was 
not,  in  my  oivn  judgment, 
driven  to  this  ground.  In  my 
opinion,  I  violated  no  law. 
The  provision  of  the  Consti- 
tution ...  is  equivalent  to  a 
provision  that  [the]  privilege 
may  be  suspended  when,  in 
cases  of  rebellion  or  invasion, 
the  public  safety  does  require 
it.  ...  7  decided  that  we 
have  a  case  of  rebellion. 


it  was  considered  a  duty 


This  authority  has  purposely 
been  exercised  .  .  .  sparingly. 


the  attention  of  the  country 
has  been  called  to  the  propo- 
sition, etc. 


.  .  .  some  consideration  was 
given  .  .  .  before  this  matter 
was  acted  upon. 


The  whole  of  the  lav)s  which 
were  required  to  be  .  .  .  exe- 
cuted. 


Must    they    be    allowed    to 
finally  fail? 


But  it  was  not  believed  thnt 
this  question  was  presented. 
It  was  not  believed  that  any 
law  was  vioilated. 


It  was  decided,  etc. 


THE  HABEAS  CORPUS  PRIVILEGE        123 

In  the  original  autograph  one  may  read,  as  it  were,  the 
President's  mental  struggling  at  the  time  the  decision 
was  taken.  In  this  remarkable  document  may  be  seen 
the  clearest  indication  that  the  appearance  of  military 
dictatorship  was  a  matter  of  deep  concern  to  the  nation's 
war  chief  and  that  his  action  was  determined  by  what  he 
believed  to  be  the  imperative  demands  of  the  actual 
situation.  His  course  in  this  matter  was  in  keeping  with 
other  acts,  such  as  the  call  for  troops  and  the  blockade, 
in  which  momentous  decisions  had  to  be  reached  during 
the  recess  of  the  legislature.^ 

In  justification  of  his  course  Lincoln  argued  his  para- 
mount duty  as  chief  executive  to  preserve  the  integrity 
of  the  Government,  a  duty  on  whose  performance  the  life 
of  the  whole  Constitution  rested.  In  Lincoln's  view  there 
was  no  violation  of  the  Constitution,  since  the  Constitu- 
tion permits  suspension  when  the  public  safety  requires 
it  during  a  rebellion  and  does  not  specify  what  branch  of 
the  Government  is  to  exercise  the  suspending  power.  As 
the  provision  was  plainly  made  for  an  emergency,  he 
argued,  the  natural  inference  is  that  the  President  should 
use  his  discretion,  not  that  the  danger  should  run  its 
course  till  Congress  could  be  called  together.  When  the 
public  safety  does  require  it,  the  suspension  is  constitu- 
tional. After  mature  thought  he  decided  that  a  rebellion 
existed  and  that  the  public  safety  did  require  a  qualified 
suspension.    It  was  therefore  authorized. 

Such  was  Lincoln's  answer  to  the  opinion  of  Chief 
Justice  Taney,    For  a  more  detailed  defense  of  the  Presi- 

'On  this  point  Lincoln's  critics  would  reply  that  the  long  recess  of 
the  national  legislature  in  1861  was  an  unfortunate  condition  for 
which  the  President  himself  was  responsible,  since  he  might  have 
called  Congress  into  session  at  once  on  the  outbreak  of  war.  While 
his  proclamation  convening  the  extra  session  of  Congress  was  issued 
on  April  15,  1861,  the  day  set  for  the  opening  of  the  sesaion  was 
July  4.    (C/.  S.  Stat,  at  Large,  XII,  1258.) 


124  THE  CONSTITUTION  UNDER  LINCOLN 

dent's  course  one  may  turn  to  such  documents  as  the 
opinion  of  Attorney  General  Bates  and  the  elaborate 
pamphlets  of  Horace  Binney.  Bates  contended  *  that 
the  three  great  branches  of  the  Government  are  coordi- 
nate and  that  the  executive  cannot  rightly  be  subjected 
to  the  judiciary,  as  would  be  the  case  if  a  high  executive 
function  should  be  obstructed  by  a  judicial  writ.  The 
President,  he  maintained,  is  in  a  peculiar  manner  the 
preserver,  protector  and  defender  of  the  Constitution; 
and  it  is  particularly  his  duty  to  put  down  a  rebeUion 
because  the  courts  are  too  weak  to  do  so,  while  all  the 
means  of  suppression  are  in  his  hands.  That  the  Presi- 
dent is  judge  of  the  exigency  and  of  the  manner  of  dis- 
charging his  duty  has  been  already  held  by  the  Supreme 
Court,  said  Bates,  in  an  analogous  case.''  Granted  that 
the  power  opens  the  way  for  possible  abuse,  it  is  just  as 
true  that  a  legislature  may  be  factious  or  a  court  corrupt. 
The  President  cannot  be  required  to  appear  before  a 
judge  to  answer  for  his  official  acts.  A  habeas  corpus 
hearing  is  like  an  appeal,  and  a  judge  at  chambers  can- 
not entertain  an  appeal  from  a  decision  of  the  President 
of  the  United  States,  especially  in  a  case  purely  political. 
In  spite,  therefore,  of  the  Chief  Justice's  decision  limit- 
ing the  right  of  suspending  the  habeas  corpus  privilege 
to  the  legislature,  Bates  contended  that,  as  a  temporary 
and  exceptional  matter  in  an  emergency,  the  President 
has  the  power  to  order  a  suspension  and  is  under  no  obli- 
gation to  obey  a  writ  of  a  court  after  capturing  insurgents 
or  spies.  For  any  breach  of  trust,  he  said,  the  President 
is  answerable  before  the  high  court  of  impeachment  and 
before  no  other  tribunal. 

In  the  writings  of  the  contemporary  legal  pamphleteer, 

•Opinion  of  Attorney  General  Bates,  July  5,  1861:     O.  R.,  Ser.  II, 
Vol.  2,  pp.  20-30. 
'Martin  vs.  Mott,  12  Wheaton  19. 


THE  HABEAS  CORPUS  PRIVILEGE       125 

Horace  Binney,  executive  suspension  finds  learned  sup- 
port.^ By  way  of  contrast  rather  than  analogy,  Binney 
begins  with  a  discussion  of  English  practice.  He  shows 
that,  for  centuries  before  1679  and  in  spite  of  the  pro- 
hibition of  Magna  Carta,  arbitrary  imprisonment  existed 
in  England.  For  general  and  unspecified  "high  treason," 
imprisonment  by  executive  warrant,  without  bail  or  trial, 
was  practiced;  and  even  Coke  admits  the  propriety  of 
such  a  proceeding.  Under  the  old  rule,  "there  was  no 
danger  of  state,  whether  there  was  rebellion  or  invasion 
or  not,  in  which  the  Crown  could  not  issue  a  warrant  to 
arrest  and  imprison  a  suspected  traitor  or  conspirator  of 
treason  and  hold  him  imprisoned  with  practical  indefi- 
niteness."  By  the  act  of  1679  this  power  was  taken  away 
from  the  monarch  and  the  guardianship  of  the  habeas 
corpus  privilege  has  since  rested  with  Parliament. 

But  in  this  respect  American  and  English  law  are  not 
analogous.  The  restriction  in  England  is  not  a  general 
prohibition  of  the  suspension  of  the  writ,  but  rather  a 
limitation  upon  the  King,  since  Parliament  may  suspend 
at  any  time,  regardless  of  whether  there  is  rebellion  or 
not.  The  motive  back  of  the  English  law  was  jealousy 
of  the  Crown,  while  in  America,  Binney  argued,  there 
was  nothing  in  the  feeble  office  of  the  President  that 
could  excite  jealousy.^ 

It  is  only  by  legislative  act  that  the  writ  may  be  over- 
ruled in  England,  but  in  the  United  States  the  Constitu- 
tion itself  authorizes  the  suspension  and  no  further  au- 
thorization is  needed.  All  that  remains  is  to  bring  about 
the  suspension  in  the  conditioned  case.  In  this  whole 
matter,   continued   Binney,    the   Constitution   must  be 

*  Horace  Binney,  The  Privilege  of  the  Writ  of  Habeas  Corpus  under 
the  Constitution  (Philadelphia,  1862). 

•  In  this  portion  of  his  argument  Binney  quoted  Bulwer-Lytton  and 
De  Tocqueville  to  show  that  the  American  executive  is  "feeble." 


126  THE  CONSTITUTION  UNDER  LINCOLN 

judged  by  itself  and  not  by  the  English  constitution  or 
by  the  powers  of  Parliament. 

In  the  debates  and  records  of  the  constitutional  con- 
vention there  seemed  to  Binney  something  mysterious 
about  the  habeas  corpus  clause.  In  his  opinion  there 
appeared  to  be  a  deliberate  hushing  of  the  subject,  which 
was  concealed  as  a  sort  of  skeleton  in  the  closet.  The 
silence  regarding  such  matters  as  executive  imprison- 
ment, the  period  of  time  during  which  the  suspension 
might  obtain,  the  nature  of  the  offense  for  which  the 
privilege  might  be  withdrawn,  the  authority  to  suspend, 
and  the  process  of  warrant  and  arrest  to  be  pursued — 
all  this  inexactness  seemed  to  result  from  a  reluctance  to 
dwell  upon  the  subject. 

The  framers  in  Binney's  view  should  have  been  more 
explicit,  for  it  is  a  timid  horseman  who  puts  a  blind  upon 
his  horse.  The  clause  as  written  by  Pinckney  had  pro- 
vided that  the  privilege  should  not  be  "suspended  by  the 
legislature    except    on    the    most    urgent    and   pressing 

conditions  and  for  a  limited  time  not  exceeding 

months."  (The  number  of  months  was  left  blank.) 
Later  Gouverneur  Morris  moved  the  clause  practically  as 
it  now  stands  while  the  powers  of  the  judiciary  were 
under  consideration.  It  was  the  Committee  on  Style  and 
Arrangement  which  grouped  it  with  the  clauses  concern- 
ing Congress.  Thus,  according  to  Binney,  the  word  leg- 
islature was  "struck  out"  and  the  clause  as  it  stands  is 
a  substitute  for  Pinckney's  wording  which  would  have 
placed  the  power  with  Congress.^" 

In  determining  which  department  has  the  power  to 

"The  selection  of  Morris'  wordinp  instead  of  Pinckney's  seems 
to  indicate  that  the  convention  consciously  and  deliberately  rejected 
a  phraseology  that  would  have  attached  the  suspending  function  to 
the  national  legislature.  (Gaillard  Hunt  and  J.  B.  Scott,  editors,  The 
Debates  in  the  Federal  Convention  of  17S7.  .  .  .  Reported  by  James 
Madison,  a  Delegate  jrom  Virginia,  227,  477.) 


THE  HABEAS  CORPUS  PRIVILEGE       127 

suspend,  the  vital  question,  as  Binney  saw  it,  is  as  to 
which  department  is  more  particularly  charged  with  care 
for  the  public  safety.  Does  it  require  an  act  of  Congress, 
he  asked,  to  declare  that  a  rebellion  or  invasion  exists? 
No,  it  is  the  President's  power  and  duty  to  decide  the 
existence  of  a  rebellion.  So  far  as  the  calling  out  of  the 
miUtia  is  concerned,  this  fact  has  been  fully  established, 
as  in  the  Whisky  RebeUion,  the  Martin  vs.  Mott  de- 
cision, and  on  other  occasions.  In  an  actual  rebellion  or 
invasion  the  declaration  and  proclamation  of  the  fact  rest 
unquestionably  with  the  executive,  and  no  other  depart- 
ment could  appropriately  decide  the  fact.  What  is  true  as 
regards  the  calling  of  the  militia  is  equally  true  concern- 
ing the  suspension  of  the  habeas  corpus  privilege,  for 
considering  the  methods  and  devices  of  rebellion,  open 
and  covert,  the  power  of  suspending  is  a  most  reasonable 
attribution  to  the  executive  power.  History,  it  was 
pointed  out,  attests  the  justice  of  this  interpretation,  for 
during  the  time  of  the  Burr  conspiracy  the  Senate,  from 
motives  of  partisanship,  passed  a  bill  suspending  the 
privilege  for  three  months  in  the  case  of  men  who  had 
committed  treason,  nothing  being  said  of  rebellion  or 
invasion.  From  this  may  be  argued  the  unwisdom  of 
leaving  such  a  function  to  Congress. 

It  is  a  mistake,  said  Binney,  to  assume  that  the  Con- 
stitution authorizes  only  such  things  as  can  be  carried 
into  efifect  by  statute.  In  this  matter  of  withdrawing  the 
writ,  the  Constitution  takes  the  place  of  the  English 
Parliament.  The  Constitution  itself,  by  clear  implica- 
tion legalizes  the  suspension.  "The  Constitution  does 
not  authorize  any  department  of  the  Government  to 
authorize  it.    The  Constitution  itself  authorizes  it." 


128  THE  CONSTITUTION  UNDER  LINCOLN 

III 

It  is  a  striking  fact  that  at  the  time  of  heated  contro- 
versy over  this  subject,  when  nearly  all  were  doubting, 
and  many  flatly  denying  the  President's  right,  Congress 
made  no  declaration  indicative  of  its  will.  In  Dr. 
Sellery's  scholarly  monograph  ^^  the  conclusion  is  reached 
that  this  long  inaction  served  as  a  tacit  sanction  of  the 
President's  right ;  but  many  who  were  supporting  Lincoln, 
as  notably  Lyman  Trumbull,  maintained  in  principle  the 
exclusive  power  of  Congress,  and  the  inaction  may  just 
as  well  have  been  due  to  failure  to  find  any  formula  upon 
which  a  majority  could  unite.  In  the  search  for  a  com- 
promise that  would  save  the  face  of  the  President  with- 
out sanctioning  the  principle  on  which  he  acted,  actual 
legislation  was  long  delayed,  and  when  it  was  finally 
accomphshed,  a  non-committal  phraseology  was  adopted. 

In  all  three  of  the  sessions  of  the  thirty-seventh  Con- 
gress the  subject  of  the  suspension  was  considered  in  one 
form  or  another.  In  the  hurried  special  session  during 
the  summer  of  1861  the  previous  orders  of  the  President 
were  ratified  so  far  as  they  related  to  the  army  and  navy 
and  the  calling  out  of  the  militia.^^ 

This  bit  of  legislation  has  usually  been  interpreted  as 
a  sanction  of  the  President's  suspension  of  the  habeas 
corpus  privilege.  The  ratifying  clause,  however,  made 
no  mention  of  this  suspension,  and  this  omission  is  all 
the  more  remarkable  in  view  of  the  fact  that  the  ques- 
tion of  arbitrary  arrests  had  been  made  a  matter  of 
debate.  As  if  still  further  to  emphasize  the  reticence  of 
Congress  on  the  subject,  the  provision  was  irrelevantly 

^  George  Clark  Sellery,  "Lincoln's  Suspension  of  Habeas  Corpus  as 
Viewed  by  Congress,"  Bull,  of  Univ.  of  Wis.,  Hist.  Ser.,  I,  No.  3, 
pp.  213-286. 

"  V.  S.  Stat,  at  Large,  XII,  326;  supra,  p.  55. 


THE  HABEAS  CORPUS  PRIVILEGE       129 

tucked  away  in  an  act  to  increase  the  pay  of  privates  in 
the  army. 

Even  if  this  measure  could  be  regarded  as  a  satisfac- 
tory ratification  of  the  President's  previous  acts,  it  still 
did  not  touch  the  main  issue.  The  question  was  not 
merely  the  President's  power  to  suspend  during  a  recess 
of  Congress,  but  his  assumption  of  that  power  even  when 
Congress  is  in  session.  Over  and  above  the  brief  and 
defective  measure  of  1861,  which  covered  an  emergency, 
it  remained  for  Congress  to  formulate  some  act  of  legisla- 
tion that  would  apply  at  least  as  long  as  the  war  con- 
tinued, and  would  state  the  way  in  which,  and  the  basis 
upon  which,  the  privilege  of  the  writ  might  be  suspended, 
assuming,  of  course,  that  such  suspension  was  to  be 
approved. 

In  the  second  session  of  the  thirty-seventh  Congress, 
extending  from  December,  1861,  to  July,  1862,  there  was 
also  a  failure  to  enact  any  law  on  this  subject.  The 
House  passed  a  bill  directing  dismissal  of  all  prisoners 
except  those  who  might  be  regularly  indicted,  and  de- 
claring further: 

That  it  is  and  shall  be  lawful  for  the  President  of  the 
United  States,  whenever  in  his  judgment  by  reason  of  "re- 
bellion or  invasion  the  public  safety  may  require  it,"  to  sus- 
pend, by  proclamation,  the  privilege  of  the  wril  of  habeas 
corpus  throughout  the  United  States  or  in  any  part  thereof, 
and  whenever  the  said  writ  shall  be  suspended  .  .  .  ,  it  shall 
be  unlawful  for  any  of  the  judges  of  the  several  courts  of  the 
United  States  or  of  any  State,  to  allow  said  writ.^^ 

This  proposed  measure  was  quite  inconclusive  as  to 
the  President's  constitutional  right.  By  this  bill,  said  one 
Senator,  "you  declare  that  it  is  the  right  of  the  President 
already,  and  shall  continue  to  be  his  right  to  suspend  the 

^  Cong.  Globe,  July  3,  1862,  37  Cong.,  2  sess.,  p.  3106. 


130  THE  CONSTITUTION  UNDER  LINCOLN 

writ  of  habeas  corpus.  You  do  not  propose  to  confer 
that  right  upon  him,  but  to  recognize  it  as  his."  ^*  And 
yet,  speaking  of  the  very  same  bill,  a  member  of  the 
House  said :  "Congress  now  gives  a  general  power  to  the 
President  to  suspend  the  writ  of  habeas  corpus,  and  by 
.  .  .  implication  we  may  thence  infer  that  he  does  not 
possess  it  of  his  own  power  or  prerogative."  ^^ 

The  Senate  Judiciary  Committee  reported  the  bill 
favorably,  and  Senator  Trumbull  labored  hard  to  push 
it  to  a  vote,  but  the  Senate  adjourned  without  action. 
The  matter  dragged  on  until  the  third  session,  and  even 
then  the  "Habeas  Corpus  Act"  narrowly  escaped  defeat. 
Finally  in  the  early  hours  of  March  3,  1863,^«  after  a 
tiresome  all-night  session,  a  bare  quorum  of  an  over- 
worked Senate  by  a  piece  of  sharp  practice  on  the  part 
of  the  presiding  officer  outwitted  those  who  were  fili- 
bustering against  the  measure  and  passed  Senator  Trum- 
bull's conference  bill  which  had  been  slowly  evolved 
through  weary  months  of  wrangling.  The  act  so  passed 
declared  in  oracular  phrase  that  "during  the  present 
rebellion  the  President  of  the  United  States,  whenever, 
in  his  judgment,  the  public  safety  may  require  it,  is 
authorized  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  in  any  case  throughout  the  United  States  or  any 
part  thereof."  ^"^ 

As  has  been  often  pointed  out,  these  words  are  capable 
of  a  double  interpretation.  Congress,  in  declaring  that 
the  President  "is  authorized  to  suspend,"  might  have 
been  recognizing  a  presidential  power  or  exercising  a 
legislative   one.    The   ambiguous   wording,   which    was 

"Remarks  of  Senator  Howe,  July  15,  1862:  Cong.  Globe,  37  Cong., 
2  sess.,  p.  3362. 

"Remarks  of  Representative  Biddle,  July  8,  1862:  Cong.  Globe, 
37  Cong.,  2  sess.,  p.  3183. 

"Infra,  pp.   190-191. 

"  U.  S.  Slat,  at  Large,  XII,  755. 


THE  HABEAS  CORPUS  PRIVILEGE       131 

intentional,  stamps  the  measure  as  essentially  a  com- 
promise between  divergent  views  prevailing  among  sup- 
porters of  the  administration.  (The  anti-administration 
members,  of  course,  voted  solidly  against  the  act.)  The 
essence  of  the  compromise  lay  in  the  fact  that  the  bill 
could  be  voted  for  both  by  those  who  favored  and  by 
those  who  opposed  the  principle  of  the  exclusive  power 
of  Congress  to  suspend.  Thus  the  only  measure  passed 
on  this  subject  during  the  war  left  matters  precisely 
where  they  had  been  before  it  was  placed  on  the  statute 
book,  so  far  as  the  main  constitutional  issue  was 
concerned.^^ 

IV 

In  the  light  of  Civil  War  experience,  it  is  doubtful 
whether  any  clear-cut  principle  of  undisputed  legal 
authority  can  be  said  to  exist  in  American  jurisprudence 
with  reference  to  this  fundamental  point  of  law.  The 
Supreme  Court  has  never  definitely  made  a  conclusive 
pronouncement  upon  the  central  issue  as  to  whether  the 
suspending  power  rests  with  the  President  or  with  Con- 
gress. The  Merryman  decision  was  not  that  of  the 
Supreme  Court;  but  it  was  an  opinion  of  one  member 
of  the  Court,  Taney,  in  a  case  which  he  heard  while  on 
circuit.  Furthermore,  it  was  in  chambers,  not  in  open 
court,  that  the  decision  was  rendered.  The  decision  is 
not  to  be  found  in  the  reports  of  cases  tried  before  the 
Supreme  Court,  but  in  those  of  the  circuit  courts.^^  At 
the  time  it  was  rendered  it  was  not  at  all  regarded  as 
a  settlement  of  the  matter.  On  this  point  the  evidence  is 
convincing,  for,  after  Taney's  opinion  had  been  rendered, 

"  Other  features  of  the  Habeas  Corpus  Act  of  1863,  bringing  into 
view  the  whole  question  of  arbitrary  arrests,  are  dealt  with  in  the 
succeeding  chapter. 

i^lT  Fed.  Cas.  144. 


132  THE  CONSTITUTION  UNDER  LINCOLN 

there  were  various  discussions  as  to  an  apprehended 
decision  by  the  Supreme  Court  on  the  President's  sus- 
pending power.  A  confidential  and  unpublished  com- 
munication from  Attorney  General  Bates  to  Secretary  of 
War  Stanton,  dated  January  31,  1863,  has  a  significant 
bearing  on  this  point.  Having  heard  that  the  Secretary 
contemplated  bringing  before  the  Supreme  Court  for 
review  certain  proceedings  of  the  Supreme  Court  of 
Wisconsin  involving  the  President's  suspending  power, 
Bates  advised  emphatically  against  it,  urging  that  a 
decision  of  the  Court  pronouncing  the  arbitrary  arrests 
illegal  would  "do  more  to  paralyze  the  Executive  .  .  . 
than  the  worst  defeat  our  armies  have  yet  sustained," 
and  that  such  an  adverse  decision  was  to  be  anticipated, 
in  view  of  the  "antecedents  and  present  prochvities"  of 
a  majority  of  the  court,  taken  in  connection  with  the 
expressed  opinion  of  certain  of  its  members.^° 

Again  in  Februarj^  of  1865,  there  was  talk  in  Lincoln's 
Cabinet  of  an  apprehended  decision  to  be  written  by 
Chief  Justice  Chase  which  would  definitely  maintain  the 
exclusive  power  of  Congress.  In  consultations  between 
President  Lincoln  and  Attorney  General  Speed  the  ap- 
prehension was  expressed  that  Chief  Justice  Chase,  who 
had  had  various  differences  with  the  President,  would 
"fail  the  administration"  on  this  matter.  As  reported 
by  Secretary  Welles,  the  President  was  astonished  at 
such  a  suggestion  in  view  of  Chase's  previous  commit- 
ments, but  Welles  considered  that  an  adroit  intriguer 
could  escape  these  commitments  and  that  Chase  would 
not  hesitate  to  use  the  bench  for  ambitious  purposes.-^ 

"Letter  of  Bates  to  Stanton  (marked  "Confidential"),  Jan.  31,  1863: 
Stanton  Papers,  No.  52223.  The  Wisconsin  decision  had  been  given 
in  the  Kemp  case,  which  is  discussed  later  in  this  chapter. 

"Diary  of  Gideon  Welles,  II,  242,  245-246.  (Feb.  21-22,  1S65.)  On 
Feb.  21,  18G5,  Welles  wrote  regarding  Chase's  apprehended  decision 
on  the  habeas  corpus  question:     "Some  intimation  comes  that  .  .  . 


THE  HABEAS  CORPUS  PRIVILEGE       133 

If  Chase  intended  to  promote  any  such  decision  he 
either  failed  to  find  an  opportunity  or  was  unable  to 
carry  the  court  with  him,  for  no  such  decision  was  issued. 
In  this  Cabinet  consultation  it  is  possible  that  the  pend- 
ing Milligan  case  was  referred  to,  but  in  this  case  the 
question  of  the  President's  power  of  suspension  did  not 
arise.^2  These  apprehensions  regarding  possible  deci- 
sions concerning  the  President's  right  show  that  the 
question  as  to  where  the  suspending  power  lay  was 
regarded  as  an  open  one  so  far  as  the  Supreme  Court 
was  concerned. 

It  is  true  that  Marshall's  opinion  in  the  Bollman  case 
has  often  been  cited  as  a  sanctioning  by  the  Supreme 
Court  of  the  congressional  power  of  suspension.  In 
that  opinion  Marshall  wrote:  "If  .  .  .  the  public  safety 
should  require  the  suspension  ...  it  is  for  the  legisla- 
ture to  say  so."  -^  Taney,  as  we  have  seen,  cited  this 
passage  as  a  precedent  and  authority  in  the  Merryman 
case.  But,  as  the  whole  context  shows,  Marshall's  mean- 
ing was:  it  is  not  for  the  court  to  say  so.  The  question 
before  the  court  was  not  the  power  of  suspending  the 
privilege  of  the  writ,  but  the  provision  of  the  Judiciary 
Act  of  1789  giving  courts  of  the  United  States  the  power 
to  issue  the  writ  of  habeas  corpus.  As  to  the  withhold- 
ing of  the  writ,  Marshall  argued  that  this  was  a  political, 
not  a  judicial  function.  In  other  words,  it  was  not  within 
the  discretion  of  the  court  to  withhold  the  writ  under  the 

the  Chief  Justice  intends  to  make  himself  felt  by  the  Administration. 
...  I  shall  not  be  surprised,  for  he  is  ambitious  and  intriguing."  The 
word  "intriguing"  was  then  deleted  and  the  word  "able"  substituted. 
The  manuscript  in  the  Library  of  Congress  reveals  many  such 
changes. 

**As  a  matter  of  fact,  Chase  dissented  from  the  Milligan  decision, 
being  unable  to  concur  in  the  view  that  Congress  had  no  power  to 
authorize  a  military  commission  in  Indiana.  (Charles  Warren,  The 
Supreme  Court  in  United  States  History,  III,  148.)     Infra,  p.  182. 

*'4  Cranch  101. 


134  THE  CONSTITUTION  UNDER  LINCOLN 

circumstances  of  the  case.  It  was  in  this  connection  that 
the  passage  in  question  occurs,  and  the  whole  passage 
reads  as  follows: 

If  at  any  time  the  public  safety  should  require  the  suspen- 
sion of  the  powers  vested  by  this  act  in  the  courts  of  the 
United  States,  it  is  for  the  legislature  to  say  so.  That  ques- 
tion depends  on  political  considerations,  on  which  the  legis- 
lature is  to  decide.  Until  the  legislative  will  be  expressed, 
this  court  can  only  see  its  duty,  and  must  obey  the  laws. 

It  is  obvious,  therefore,  that  neither  the  facts  of  the 
Bollman  case  nor  the  oft-quoted  passage  of  Marshall's 
opinion  have  any  bearing  upon  the  controversy  as  to 
whether  Congress  or  the  President  has  the  suspending 
power. 

The  fact  that  many  able  judges  of  the  period  placed 
the  power  exclusively  with  Congress  is,  however,  signifi- 
cant of  the  trend  of  judicial  opinion.  In  the  Kemp  case 
in  Wisconsin,  where  State  judges  in  separate  decisions 
each  asserted  the  exclusive  legislative  power  of  sus- 
pension,-* Judge  Paine  declared  that  there  were  other 
dangers  to  be  looked  to  besides  success  of  the  rebellion — 
namely,  acquisition  of  extraordinary  powers,  and  the 
establishment  of  dangerous  precedents.-^  Though  a 
judge's  voice  may  not  be  heeded,  he  said,  yet  he  could 
only  decide  according  to  the  Constitution  and  the  law. 
He  held  that  military  arrest  on  the  basis  of  presidential 
suspension  of  the  writ  could  be  justified  only  on  the 
assumption  that  the  President  may  abrogate  the  Con- 
stitution. But,  as  the  judge  argued,  the  President  is  to 
execute  the  laws  only  by  such  means  as  the  Constitution 
gives  him,  and  war  does  not  break  down  the  distinction 
between  the  branches  of  government.    Taking  issue  with 

**/«  re  Kemp,  16  Wis.  382. 
"Ibid.,  pp.  402  et  seq. 


THE  HABEAS  CORPUS  PRIVILEGE       135 

Bates'  argument  that  the  President  has  "political 
powers"  with  which  the  court  cannot  interfere,  the  Wis- 
consin judge  maintained  that  the  Constitution  and  the 
laws  do  not  give  to  the  President,  except  where  the  writ 
is  legally  suspended,  any  political  discretion  to  imprison. 
The  Constitution,  he  said,  "knows  no  political  .  .  .  cause 
of  imprisonment.      There  must  be  a  'process  of  law.'  "  ^^ 

Some  light  is  thrown  on  the  attitude  of  Congress  with 
reference  to  this  subject  by  an  act  passed  in  1871.  Be- 
cause of  reconstruction  disturbances  in  South  Carolina 
it  was  provided  that,  in  case  of  unlawful  combinations 
against  the  United  States  amounting  to  rebellion,  "it 
shall  be  lawful  for  the  President,  .  .  .  when  in  his  judg- 
ment the  public  safety  shall  require  it,  to  suspend  the 
privilege  of  the  writ  of  habeas  corpus  to  the  end  that 
such  rebellion  may  be  overthrown."  ^^ 

Acting  on  this  authority.  President  Grant  suspended 
the  usual  operation  of  the  habeas  corpus  process  within 
nine  designated  counties  of  South  CaroHna  with  respect 
to  all  persons  arrested  by  United  States  marshals  or  by 
military  authority  charged  with  participation  in  unlaw- 
ful combinations.  In  the  wording  of  the  executive  proc- 
lamation, the  act  of  Congress  is  mentioned  as  the  source 
of  the  President's  authority.^^ 

From  this  instance  one  may  conclude  that  Congress  in 
1871  beheved  that  a  suspension  of  the  privilege  might 
be  authorized  by  the  national  legislature,  though  it  was 
to  be  put  into  effect  by  the  President.  The  President's 
concurrence  in  this  view  is  shown  by  his  signature  of  the 
bill  and  by  the  form  in  which  his  proclamation  was 
drawn.    There  is  nothing,  however,  in  either  the  law  or 

''Ibid.,  p.  420. 

"Act  of  Apr.  20,  1871  (sometimes  called  the  "Ku  Klux  Act"),  sec  4: 
U.  S.  Stat,  at  Large,  XVII,  14-15. 
"  Ibid.,  pp.  952,  953. 


136  THE  CONSTITUTION  UNDER  LINCOLN 

the  proclamation  of  1871  which  touches  the  question  of 
the  exclusive  power  of  Congress  to  suspend;  and  the 
legislation  is  significant  merely  as  an  instance  of  the 
exercise  of  a  power  without  being  conclusive  as  to  the 
constitutional  authority  involved. 

In  this  whole  matter  of  the  right  associated  with  the 
habeas  corpus  writ,  a  rather  liberal  allowance  must  be 
made  for  unreasoning  inference.  By  long  tradition  the 
writ  has  become  so  closely  associated  in  popular  senti- 
ment with  the  safeguards  of  hberty  that  any  discharge 
of  a  prisoner  by  means  of  the  writ  seems  a  vindication 
of  justice.  The  illogical  charaxjter  of  this  view  will  be 
recognized  when  one  reflects  that  the  writ  may  be  mis- 
used, and  that  in  many  cases  the  respondent  may  be  well 
justified  in  holding  the  prisoner.  There  are,  of  course, 
cases  in  which  a  proper  return  to  the  writ  would  not 
involve  "bringing  the  body,"  as  for  instance  where  a 
commander  holds  a  man  by  virtue  of  enhstment  in  the 
military  service  of  the  United  States,  or  where  a  legally 
drafted  man  is  held  in  custody  by  a  provost  marshal. 
For  the  court  to  release  a  prisoner  in  such  a  case  would 
be  a  plain  misapplication  of  judicial  power,  yet  popu- 
lar opinion  would  not  discriminate  between  these  and 
justifiable  discharges. 


To  define  the  present  status  of  this  historic  contro- 
versy is  not  a  simple  matter.  Judging  by  the  views  of 
many  Congressmen,  the  flood  of  pamphlets,  the  learned 
words  of  Taney,  and  the  pronouncements  of  lower  courts, 
the  weight  of  opinion  would  seem  to  incline  to  the  view 
that  Congress  has  the  exclusive  suspending  power;  and 
many  would  doubtless  insist  that  this  is  the  accepted 
American  principle.    But  in  a  future  crisis  the  presiden- 


THE  HABEAS  CORPUS  PRIVILEGE       137 

tial  power  to  suspend  would  probably  be  just  as  much 
an  open  question  as  during  the  Civil  War.  As  to  the 
actual  precedent  of  that  war,  the  outstanding  fact  is  that 
the  Chief  Executive  "suspended  the  writ,"  and  that,  so 
far  as  the  legal  consequences  were  concerned,  he  was  not 
restrained  in  so  doing  by  Congress  nor  by  the  courts.^^ 

Even  where  Congress  authorizes  the  suspension,  the 
actual  putting  into  force  of  such  suspension  is  a  presi- 
dential function,  exercised  by  proclamation.  If  the  pro- 
cedure of  1871  were  to  be  followed,  the  most  essential 
function  would  still  be  left  with  the  President,  for  Con- 
gress in  that  case  empowered  the  President  to  suspend 
the  privilege  "whenever  in  his  judgment  the  public 
safety  shall  require  it,"  thus  leaving  the  actual  suspen- 
sion to  the  President,  with  discretion  to  act  within  the 
limits  indicated  by  the  statute. 

Since  the  suspension  of  the  privilege  is  a  "condition, 
not  an  act,"  it  would  also  be  necessary  for  the  President 
to  declare  the  restoration  of  the  privilege — in  other 
words,  to  terminate  the  suspension.     This  again  would 

"There  were  certain  pronouncements  of  the  Supreme  Court  which 
suggested  a  sort  of  indirect  sanctioning  of  the  President's  action  in 
suspending  the  habeas  corpus  privilege.  In  the  Prize  Cases  the 
Supreme  Court  held  that  the  President  did  not  have  to  wait  for  con- 
gressional authorization  in  order  to  perform  acts  appropriate  to  war 
time.  Although  the  suspension  was  not  directly  dealt  with  in  this 
case,  yet  the  decision  showed  a  disposition  to  uphold  the  President's 
hands.  In  Mitchell  vs.  Clark  (110  U.  S.  647)  the  Supreme  Court  up- 
held the  constitutionality  of  the  indemnity  feature  of  the  Habeas 
Corpus  Act  of  1863,  declaring  it  to  be  valid  in  its  retroactive  effect.  The 
court  thus  approved  the  immunity  granted  to  Federal  officials  as  to 
acts  performed  under  presidential  authority  at  any  time  during  the 
"rebellion,"  and  such  officials  were  in  this  way  sustained  in  doing 
things  which  would  have  been  illegal  on  the  assumption  that  the 
President's  suspension  was  invalid.  (This  subject  is  discussed  further 
in  Chapter  IX.)  As  to  the  Merryman  decision,  that  was  not  a  pro- 
nouncement of  the  Supreme  Court;  while  in  the  Milligan  case  the 
Court  did  not  go  to  the  point  of  declaring  invalid  the  action  of  the 
President  in  suspending  the  privilege,  but  rather  declared  against  the 
use  of  military  commissions  in  peaceful  districts. 


138  THE  CONSTITUTION  UNDER  LINCOLN 

involve  an  exercise  of  presidential  discretion.  In  no 
case,  therefore,  can  the  presidential  function  be  entirely 
ignored;  and  there  would  appear  to  be  an  essentially 
executive  quality  in  the  whole  proceeding.  In  the  case 
of  President  Grant,  Congress  took  the  initiative,  but  in 
many  instances — perhaps  in  the  typical  ones — the  Presi- 
dent would  necessarily  have  to  take  the  initiative,  and 
under  such  circumstances  the  Lincoln  precedent  would 
naturally  be  invoked. 

The  silence  of  the  Constitution  was  perhaps  fortunate 
as  the  event  proved,  for  in  more  than  a  century  and  a 
quarter  under  the  Constitution  the  only  general  suspen- 
sion occurred  at  a  time  when  the  Government  was  con- 
trolled by  an  administration  highly  regardful  of  indi- 
vidual rights  and  yet  forced  by  circumstances  to  adopt 
summary  measures.  It  was  Horace  Binney's  view  that 
the  framers  erred  in  making  the  language  indefinite,  but 
one  may  well  ask  whether  a  specific  provision  on  such  a 
point  would  not  have  been  more  of  a  hindrance  than  a 
help.  Considering  the  rareness  of  the  exercise  of  the 
power,  and  the  lack  of  abuse  of  it,  it  might  seem  to 
many  that  the  constitutional  omission  was  really  a  case 
of  golden  silence,  and  that  the  brevity  and  flexibihty  of 
the  clause  pertaining  to  habeas  corpus  was  an  advantage. 

After  all,  the  essential  question  is  not  who  suspends, 
but  whether  the  emergency  actually  calls  for  summary 
arrest,  and  whether  the  rule  of  necessity  is  observed  in 
the  taking  and  holding  of  prisoners.  If  due  restraints 
are  observed  during  the  period  of  suspension;  if  it  is 
merely  a  "suspension"  and  not  a  setting  aside  of  guaran- 
tees; if  the  withholding  of  the  writ  is  not  taken  as  equiva- 
lent to  the  establishment  of  martial  law  or  as  a  justifica- 
tion of  summary  execution,  then  no  serious  outrage  upon 
American  sensibilities  is  likely  to  be  threatened.  A  close 
study  of  what  is  actually  involved  in  the  suspension  of 


THE  HABEAS  CORPUS  PRIVILEGE       139 

the  writ  offers  the  best  guidance  with  reference  to  the 
controversial  issue  which  we  have  been  considering.  In 
the  two  succeeding  chapters,  therefore,  we  will  examine 
the  executive  processes  that  were  in  operation  while  the 
privilege  was  suspended  and  consider  the  use  of  military 
authority  in  the  restraint  of  civilians. 


CHAPTER  VII 

MILITARY   RULE   AND   ARBITRARY   ARRESTS 

I.   Military  rule  and  martial  law  in  general:  Infrequent 

use  of  martial  law  in  England 
II.   Sparing  application  of  martial  law  in  the  United  States 

III.  Arbitrary  arrests  during  the   Civil  War 

IV.  Conflicts  between  military  and  civil  authorities:  The 

Merryman  case 
V.   Significance  of  the  Habeas  Corpus  Act  of  1863 


The  nature  and  extent  of  martial  law  is  a  problem 
upon  which  Anglo-Saxon  opinion  has  always  been  wary. 
In  harmony  with  the  principle  that  government  is  under, 
not  above,  the  law,  there  has  developed  within  modern 
English  jurisdictions  a  disposition  to  subject  military 
power  to  civil  authority,  and  a  reluctance  to  sanction 
any  extension  of  the  jurisdiction  of  military  officers  and 
tribunals  over  civilians.  In  the  words  of  the  United 
States  Supreme  Court,  "it  is  an  unbending  rule  of  law 
that  the  exercise  of  military  power,  where  the  rights  of 
the  citizen  are  concerned,  shall  never  be  pushed  beyond 
that  which  the  exigency  requires."  ^ 

Military  rule  over  military  persons  is  a  branch  of  law 
having  its  own  special  history.  Originating  in  special 
prerogative  courts  in  England  ^  in  the  period  when  sol- 

'  Raymond  vs.  Thomas,  91   U.  S.  712,  716. 

"Originally   the   spelling  was  "marshal    law"  and   the   term    denoted 
the  law  administered   by   the   Court   of   the   Constable   and   Marshal 

140 


ARBITRARY  ARRESTS  141 

diers  were  regarded  as  personal  retainers  of  the  monarch, 
and  passing  through  various  stages  of  development  in 
connection  with  which  the  Mutiny  Act  is  a  legal  land- 
mark, the  authority  of  courts-martial  over  the  armed 
forces  has  become  clearly  established.  In  America,  by 
the  Articles  of  War,^  based  largely  on  the  English 
Mutiny  Act,  a  strictly  limited  statutory  jurisdiction  is 
given  to  courts-martial  over  military  persons  in  time  of 
war  or  peace — a  jurisdiction  which  is  exclusive  but  which 
involves  only  the  power  to  inflict  punishments,  not  the 
authority  to  deal  with  civil  actions. 

Military  rule,  then,  occupies  a  field  of  its  own.  Its 
function  is  exclusive,  and  the  performance  of  this  limited 
function  need  not  involve  the  invasion  of  any  other 
judicial  province.^  Even  over  military  persons  the  reg- 
ular courts  have  jurisdiction  in  England  and  America  in 
the  case  of  ordinary  civil  relationships  where  no  breach 


which  dispensed  military  justice.  (In  re  the  petition  of  D.  F.  Marais, 
Edinburgh  Review,  Vol.  195,  p.  80;  G.  B.  Davis,  Military  Law  of  the 
United  States,  Introduction.)  The  archaic  spelling  is  shown  in  the 
following  quotation:  "Please  your  Maiestie,  let  his  Neck  answere 
for  it,  if  there  be  any  Marshall  Law  in  the  World."  (Shakespeare, 
Henry  V,  IV,  viii,  46;  Oxford  English  Dictionary,  ad.  verb,  "martial," 
par.  3.) 

^  The  Mutiny  Act  of  1689,  annually  reenacted  and  superseded  in 
1881  by  the  Army  Act  (also  annually  reenacted)  has,  as  G.  B.  Davis 
points  out,  brought  the  ancient  system  of  military  jurisprudence  within 
the  purview  of  the  English  constitution.  The  Continental  Congress 
based  its  "Articles  of  War"  of  1775  upon  the  English  Mutiny  Act. 
Uour.  of  Cong.,  I,  90;  435-482.)  Similar  enactments  were  made  in 
1789,  in  1806,  and  in  1916.  ([/.  S.  Stat,  at  Large,  I,  95;  II,  359; 
XXXIX,  650;  Davis,  Military  Law  of  the  United  States,  Ch.  xix; 
Hare,  American  Constitutional  Law,  II,   Chs.  xlii,  xliii.) 

*  Civil  courts  may  not  review  the  proceedings  of  courts-martial  ex- 
cept where  the  latter  have  no  jurisdiction  over  the  subject  matter 
of  the  charges,  or  where  they  inflict  punishment  beyond  the  law. 
A  sentence  legally  given  and  confirmed  by  the  President  is  final, 
pardon  being  the  only  escape.  (Dynes  vs.  Hoover,  20  How.  78. 
See  also  Johnson  vs.  Sayre,  158  U.  S.  109.) 


142  THE  CONSTITUTION  UNDER  LINCOLN 

of  military  duty  is  involved.  In  such  matters  the  soldier 
is  treated  as  being  also  a  citizen.^ 

Martial  law  is  a  different  matter.®  It  applies  to  civil- 
ians and  involves  the  substitution  of  a  military  regime 
and  military  tribunals  in  a  whole  community  in  place 
of  the  ordinary  processes  of  justice.  It  is  claimed  by 
the  advocates  of  martial  law  that  the  executive  may, 
upon  his  own  initiative  and  discretion,  determine  when 
an  emergency  exists  justifying  summary  process;  that  he 
may  by  proclamation  establish  a  military  regime  to  sup- 
plant civil  procedure;  that  an  armed  force  acting  only 
under  executive  orders  may  then  be  set  in  control  of  the 
disaffected  district;  that  special  military  courts  with 
their  own  peculiar  rules  and  punishments,  independent 
of  appeal,  may  be  established;  and  that  all  the  normal 
safeguards  and  guarantees  of  criminal  justice  may  be 
ignored. 

A  power  of  this  sort  once  established  is  capable  of 
almost  indefinite  expansion.  Both  the  occasion  of  this 
regime  of  summary  justice  and  its  duration  are  matters 
for  the  executive  to  determine.    New  offenses,  unknown 


°  In  commenting  upon  the  twofold  character  of  the  soldier  in  the 
United  States  and  in  England,  Hare  points  out  that  on  the  one  side 
he  is  liable  before  the  military  authorities  for  acts  that  would  be 
trivial  in  a  citizen;  and  on  the  other  hand  he  is,  in  common  with 
civilians,  subject  to  the  liabilities  of  common  and  statute  law,  and 
cannot  rely  upon  military  orders  for  acts  contrary  to  law.  The  soldiers 
who  fired  on  the  mob  in  Boston  in  1770  were  tried  not  by  court- 
martial,  but  by  a  Boston  jury  who  responded  to  the  confidence  re- 
posed by  the  acquittal  of  all  except  two  who  were  branded  for  man- 
slaughter. (Hare,  American  Constitutional  Law,  II,  Ch.  xlii;  Van 
Tyne,  Causes  of  the  War  of  Independence,  288;  A.  L.  Lowell,  Govern- 
ment of  England,  II,  491.) 

*  "Many  people,  ignorantly  or  wantonly,  confound  military  law  and 
martial  [laiuli,  as  if  they  were  one  and  the  same,  while  in  truth  they 
are  the  exact  opposites  of  each  other.  Martial  law  is  the  will  of  the 
military  chief.  Military  law  is  the  ordinary  law  of  the  land  which 
relates  to  military  affairs."  (MS.  Diary  of  Edward  Bates,  March 
S.  1865.) 


ARBITRARY  ARRESTS  143 

to  the  ordinary  law,  may  be  created.  There  are  no  war- 
rants in  the  case  of  arrests,  no  hearings  of  prisoners  on 
habeas  corpus  petitions,  and  no  opportunity  to  inquire 
judicially  into  complaints  of  arbitrary  treatment.  The 
executive  chief  is  the  one  source  of  authority.  In  effect, 
the  same  man  becomes  at  once  lawgiver,  executive,  and 
judge.  Seizures  and  arrests  may  be  made  on  mere  sus- 
picion by  military  men — men  who  by  experience  and 
habit  of  mind  are  accustomed  to  the  unbending  enforce- 
ment of  orders  and  are  often  impatient  of  the  restraints 
of  civil  government. 

The  resort  to  such  an  extreme  procedure,  both  in 
England  and  America,  has  been  rare.  Neither  of  the 
Jacobite  rebellions  in  the  first  half  of  the  eighteenth 
century  occasioned  any  interruption  of  usual  judicial 
processes.  In  the  case  of  the  Irish  revolutionist,  Wolfe 
Tone,  sentenced  in  1798  by  a  military  tribunal,  the 
Court  of  King's  Bench  at  Dublin  intervened  on  the  side 
of  individual  liberty  and  ordered  a  release  on  habeas 
corpus,  on  the  ground  that,  while  the  ordinary  courts 
were  functioning  and  actual  war  not  waging,  such  court- 
martial  decrees  could  not  be  endured.  The  Gordon  riots 
of  1780  were  suppressed  without  any  proclamation  of 
martial  law,  and  ordinary  civil  process  was  thought  ade- 
quate during  the  Chartist  disturbances  of  1839  and  1848 
as  well  as  during  the  serious  Fenian  outrages  in  1867. 
Even  in  1817,  when  the  Habeas  Corpus  Act  was  sus- 
pended by  a  reactionary  Tory  government,  there  were 
no  sentences  inflicted  by  military  authority,  and  so  far 
as  Great  Britain  is  concerned  there  was  no  proclamation 
of  martial  law  from  1689  to  the  period  of  the  World 
War.  In  Ireland,  it  is  true,  and  also  in  South  Africa,  a 
harsher  course  has  prevailed,  but  the  many  vigorous  pro- 
tests from  eminent  legal  authorities  suggest  that  such 
measures  are  looked  upon  as  usurpations  and  are  wholly! 


144  THE  CONSTITUTION  UNDER  LINCOLN 

out  of  harmony  with  the  genius  and  spirit  of  English 
institutions.'^ 

II 

As  to  America,  the  processes  of  civil  justice  have 
proved  sufficiently  resourceful  to  cope  with  grave  dis- 
turbances. During  the  TVTiiskey  Insurrection  Washing- 
ton rigidly  held  the  army  in  subjection  to  the  civil  power; 
martial  law  was  not  declared ;  arrests  were  made  by  civil 
officers  on  warrants,  and  the  authority  of  the  Federal 
judge  of  the  district  was  respected  by  the  military  com- 
manders.^ Certain  leaders  of  the  insurrection  were  con- 
victed in  the  regular  courts,  sentenced  to  death  foir 
treason,  and  pardoned  by  the  President.    The  case  was 


'On  the  general  subject  of  martial  law  in  England  and  the  United 
States,  the  following  authorities  may  be  consulted:  Dicey,  Law  of  the 
Constitution  (1889),  265;  Frederic  Harrison,  "The  State  of  Siege"  in 
National  and  Social  Problems,  Chap,  x;  Finlason,  Treatise  on  Martial 
Law;  Forsyth,  Cases  and  Opinions  on  Constitutional  Law;  Unsigned 
article  apropos  the  Marais  Case,  in  Edinburgh  Review,  Vol.  195,  pp. 
79-105;  Report  of  Lord  Featherstone's  commission  on  the  Feather- 
stone  riots,  in  Parliamentary  Papers,  1893-1894,  c.  7234;  Grant  vs.  Sir 
Charles  Gould,  in  2  Henrj'  Blackstone  69;  Lord  Chief  Justice  Cock- 
bum's  Charge  to  Jury  (in  a  case  growing  out  of  a  negro  rebellion  in 
Jamaica  in  1865),  Annual  Register  N.  S.,  1867,  230-234;  Mostyn  vs. 
Fabrigas  (1774),  1  Cowper  161;  G.  B.  Davis,  Military  Law  of  the 
United  States;  J.  I.  C.  Hare,  American  Constitutional  Law,  II,  Chs. 
xlii,  xliii,  xliv;  Holdsworth,  "Martial  Law  Historically  Considered," 
in  Law  Quar.  Rev.,  XVIII,  117;  H.  Earle  Richards,  "Martial  Law," 
ibid.,  p.  133;  McLaughlin  and  Hart,  Cyclopedia  of  American  Govern- 
ment, II,  402;  H.  W.  Ballantine,  "Unconstitutional  Claims  of  Militar>' 
Authority,"  in  Yale  Law  Rev.,  XXIV,  189;  F.  Pollock,  "What  is 
Martial  Law?",  in  Law  Quar.  Rev.,  XVIII,  152;  H.  W.  Ballantine, 
"Martial  Law,"  in  Columbia  Law  Rev.,  XII,  529;  Joel  Parker,  Habeas 
Corpus  and  Martial  Law  (Welch,  Bigelow  and  Co.,  Cambridge.  Mass., 
1861);  Luther  vs.  Borden,  7  Howard  1;  Notes  thereon  in  Law>'ers' 
edition  of  U.  S.  Supreme  Court  Reports,  XII,  581 ;  In  re  Kemp,  16 
Wis.  382;  Coleman  vs.  Tennessee,  97  U.  S.  509;  Mover  vs.  Peabody, 
212  U.  S.  78;  In  re  Moyer,  85  Pacific  190;  Ex  parte  Milligan,  71  U.  S. 
2;  In  the  matter  of  Samuel  Stacy,  Jr.,  10  Johnson's  [N.  Y.  Supreme 
Court]   Reports  328  (1813);  Dynes  vs.  Hoover,  20  How.  65. 

•  McMaster,  History  of  the  People  of  the  United  States,  II,  190-203. 


ARBITRARY  ARRESTS  145 

analogous  to  that  of  the  Gordon  riots  in  England  in  the 
fact  that,  though  the  troops  were  called  out,  the  trials 
were  before  the  civil  courts.  The  precedent  of  the 
Whiskey  Insurrection  was  followed  in  the  case  of  the 
Burr  conspiracy  of  1805-06.^ 

General  Jackson's  excessive  zeal  in  imposing  military 
rule  over  civilians  in  Louisiana  during  the  War  of 
1812  led  to  a  result  opposite  to  that  intended.  He  had 
made  a  military  arrest  under  martial  law,  and  when 
served  with  a  writ  of  habeas  corpus  by  the  district  court 
he  not  only  disregarded  the  writ  but  imprisoned  the 
judge  who  issued  it.  As  Jackson  was  subjected  to  an 
attachment  for  contempt  and  compelled  to  pay  a  fine 
of  $1,000,  the  net  result  of  the  episode  was  a  vindication 
of  civil  authority.^*' 

*  In  the  case  of  the  Burr  conspiracy,  the  American  preference  for  civil 
process  over  military  arrests  was  sho'mi  in  the  release  of  Wilkinson's 
prisoners  on  habeas  corpus  proceedings  in  the  courts,  and  in  the  refusal 
of  the  House  of  Representatives  to  pass  the  Senate  bill  for  the  sus- 
pension of  the  privilege.  Burr's  recent  biographers  treat  Wilkinson's 
flourishing  of  the  sword  and  his  melodramatic  '"bellowings"  with  marked 
sarcasm.  Samuel  H.  Wandell  and  Meade  Minnegerode,  Aaron  Burr,  II, 
118-150. 

^''  General  Jackson  was  at  this  time  governing  by  martial  law. 
Louallier,  a  Frenchman  of  New  Orleans,  had  written  a  defiant  letter 
denouncing  Jackson's  treatment  of  Frenchmen,  and  this  was  published 
in  a  city  paper.  For  this  he  was  placed  under  military  arrest  by 
Jackson's  order.  The  Federal  district  judge,  D.  A.  Hall,  caused  a  writ 
of  habeas  corpus  to  be  serv^ed  upon  Jackson,  whereupon  Judge  Hall 
was  arrested  and  kept  for  some  time  in  prison.  When  the  Federal 
district  attorney  applied  to  a  State  judge  for  Hall's  release  on  habeas 
corpus,  both  the  district  attorney  and  the  judge  were  arrested.  Loual- 
lier's  case  was  brought  before  a  court-martial  which  decided  that  it 
had  no  jurisdiction  over  him  and  held  that  he  must  be  released  from 
military  detention.  Jackson  set  aside  the  finding  of  the  court-martial, 
and  his  prisoners  were  released  only  upon  receipt  of  official  news  of 
the  ratification  of  the  treaty  of  peace  with  England.  Judge  Hall  sum- 
moned Jackson  for  contempt  of  court  and  fined  him  SIOOO  which 
Jackson  paid.  On  February  16,  1844,  Congress  remitted  the  fine 
with  interest.  There  seems  to  have  been  no  adequate  reason  for  this 
remission  other  than  a  desire  to  pay  a  compliment  to  General  Jackson 
when  on  the  verge  of  the  grave.  (J.  S.  Bassett,  Ldfe  of  Jackson,  224- 
230,  745.) 


146  THE  CONSTITUTION  UNDER  LINCOLN 

In  the  Dorr  rebellion  a  Rhode  Island  governor  was 
upheld  in  establishing  martial  law,"  but  the  emergency 
was  an  unquestioned  one,  as  the  very  government  itself 
was  in  danger.  It  is  only  recently,  as  in  West  Virginia, 
Colorado,  Montana,  and  Oklahoma,  that  resort  to  mar- 
tial law  has  become  more  frequent;  and,  though  the 
courts  have  here  and  there  sustained  this  policy,  the 
tendency  of  our  law  may  still  be  considered  adverse  to 
such  measures. 

In  contrast  with  the  Continental  practice  by  which 
martial  law  is  given  a  definite  niche  in  the  constitutional 
framework,  there  is  in  England  and  America  a  certain 
discredit  attaching  to  summary  executive  process.  It  is 
not  a  separate  and  clearly  defined  body  of  law,  such  as 
equity,  for  instance,  but  rather  the  setting  aside  of  law 
through  the  substitution  of  the  commander's  will.  Such 
a  constitutional  principle  as  that  which  enabled  Ger- 
many to  be  governed  under  martial  law  during  the  World 
War,  or  such  a  procedure  as  the  French  etat  de  siege  is 
unfamiliar  to  the  Anglo-Saxon  legal  mind. 

Some  English  authorities  refuse  to  recognize  martial 
law  altogether,  contending  that  the  resources  of  the  com- 
mon law  are  adequate  to  the  maintenance  of  order  even 
in  a  serious  crisis  and  that  every  citizen,  whether  acting 
as  a  soldier  or  not,  is  bound  to  use  suflBcient  force  to 
overcome  any  resistance  to  public  order.^^  Where  the 
courts  are  open,  and  where  they  are  unhampered  by  any 
threat  of  jorce  majeure,  it  is  contended  that  their  au- 

*2See  the  facts  in  Luther  vs.  Borden,  7  How.  1. 

""  .  .  .  it  [martial  hiw]  is  not  a  law,  but  something  indulged  rather 
than  allowed,  as  a  law."  (Sir  Matthew  Hale,  History  of  the  Common 
Laio  (London,  1779),  Ch.  ii.)  "It  is  totally  inaccurate  to  state  mar- 
tial law  as  having  anj'  place  whatever  in  the  realm  of  Great  Britain" 
(Lord  Loughborough  in  Grant  vs.  Gould,  2  Henry  Blackstone  69). 
And  see  Dicey,  Law  of  the  Constitution,  381.  For  similar  expressions 
concerning  martial  law  in  the  United  States,  see  H.  W.  Ballantine,  in 
Yale  Law  Rev.,  XXIV,  198. 


ARBITRARY  ARRESTS  147 

thority  is  to  be  respected.  If  a  commander  disregards 
the  usual  guarantees,  making  summary  seizures,  arrests, 
and  imprisonments,  his  proceedings  may,  indeed,  ulti- 
mately be  held  justifiable,  but  he  takes  a  risk.  His 
action  is  reviewable  by  the  courts,  and  in  case  of  any 
infringement  upon  private  rights  beyond  the  point 
reasonably  warranted  by  the  necessities  of  the  situation, 
he  may  be  held  liable  in  a  civil  or  even  in  a  criminal 
action.  As  against  the  consequences  of  such  an  infringe- 
ment not  even  the  plea  of  superior  orders  can  operate 
as  a  defense,  for  no  protection  flows  from  the  command 
of  a  superior  wrongdoer.  Under  this  interpretation  the 
civil  tribunals  would  be  the  final  judge  of  the  validity  of 
this  summary  procedure,  both  as  to  the  circumstances  of 
its  inauguration  and  the  acts  performed  during  its 
continuance. 

On  the  other  hand,  a  series  of  decisions  may  be  cited 
sustaining  executives  who  have  instituted  martial  law 
and  declaring  that,  where  the  action  was  bona  fide,  the 
courts  would  make  no  inquiry  into  the  causes  thereof.^^ 
This  is  not  a  problem  on  which  the  tendency  of  either 
English  or  American  law  is  unwavering.  The  lack  of  a 
clear-cut  principle  is  testimony  to  the  fact  that  our  minds 
are  unused  to  any  military  government  over  civilians, 
and  this  should  be  a  warning  to  executives  to  act  cir- 
cumspectly in  using  such  a  distrusted  and  questionable 
weapon, 

III 

During  the  Civil  War  the  line  of  demarcation  between 
military  and  civil  authority  was  often  blurred.  Though 
military  oppression  in  its  extreme  forms  was  absent,  yet 
there  were  many  irritating  instances  of  military  encroach- 

"  See  In  re  Moyer,  and  cases  therein  cited.    85  Pacific  190. 


148  THE  CONSTITUTION  UNDER  LINCOLN 

ment  upon  the  proper  field  of  civil  govemraent.  General 
Lew  Wallace,  commanding  in  Marjdand  in  1864,  used  his 
detectives  and  his  quartermaster's  department  to  enforce 
the  acts  for  the  confiscation  of  "rebel"  property,  forget- 
ting that  military  seizure  was  not  legalized  by  these  stat- 
utes.^^  Military  pressure  was  applied  by  General  B.  F. 
Butler  at  Norfolk,  Virginia,  in  defiance  of  the  authority 
of  Governor  Pieipoint  at  Alexandria.  In  Kentucky  civil 
and  military  conflicts  were  frequent.  When,  for  instance. 
General  Hugh  Ewing,  from  military  headquarters  at 
Louisville,  issued  an  order  requiring  local  county  authori- 
ties to  levy  a  tax  for  military  purposes,  the  governor  of 
the  State  declared  that  compliance  with  this  order  would 
be  a  violation  of  law.^^  The  order  of  a  colonel  in  the 
Federal  army  directing  the  dismissal  of  indictments  pend- 
ing in  a  Missouri  court  elicited  from  Attorney  General 
Bates  the  comment  that  the  colonel  might  tell  the  judge 
"who  to  try  and  punish  and  who  to  set  free,  and  also 
[might]  furnish  him  with  better  opinions  than  his  own 
to  be  delivered  from  the  bench!"  ^^ 

The  power  of  the  sword  even  invaded  the  domain  of 
religious  worship.  In  1863  a  provost  marshal  at  St.  Louis 
tried  to  silence  a  preacher  and  transfer  the  control  of  a 
certain  church  from  one  set  of  men  to  another.  On  this 
subject  President  Lincoln  wrote  disclaiming  any  inten- 
tion of  interfering  with  the  churches.  Having  so  written, 
he  was  considerably  embarrassed  to  find  that,  by  formal 
order  of  the  War  Department,  Bishop  Ames  had  been 
given  control  of  all  the  Methodist  churches  (in  certain 
Southern  military  departments)  whose  pastors  had  not 
been  appointed  by  loyal  bishops,  and  that  military  aid 

?*0.  it!.,  Ser.  I,  Vol.  33,  p.  989;  Vol.  37,  pt.  1,  p.  638;  Ser.  Ill,  Vol.  4, 
pp.   107-413. 
"  MS.  Diary  of  Edward  Bates,  June  25,  1864  and  Nov.  22,  1864. 
*'Ibid.,  Mar.  28,  1865. 


ARBITRARY  ARRESTS  149 

was  extended  for  the  maintenance  of  such  control.^'' 
When  at  the  close  of  the  war  Sherman  brought  John- 
ston's army  to  surrender,  he  included  the  whole  subject 
of  political  reconstruction  in  his  terms  of  capitulation. 
These  instances  will  perhaps  suffice  to  show  the  lack  of 
a  nice  distinction  betwen  civil  and  military  rule. 

It  is  with  these  conditions  in  mind  that  one  must 
approach  the  subject  of  political  arrests  during  the  war. 
In  this  branch  of  the  public  business  a  slow  evolution  of 
policy  is  discernible.  In  the  early  part  of  the  war  the 
withholding  of  the  privilege  of  the  habeas  corpus  writ 
was  restricted  to  definite  localities  specified  in  various 
presidential  proclamations,  beginning  with  that  of  April 
27,  1861,  covering  the  line  from  Washington  to  Phila- 
delphia.^^ During  this  period  prisoners  taken  under  mili- 
tary orders  were  held  under  the  custody  of  the  Depart- 
ment of  State.  The  emergency  at  this  time  was  exceed- 
ingly grave  and  hundreds  of  prisoners  were  apprehended. 

Seward's  activities  in  the  year  1861,  when  his  depart- 
ment was  in  charge  of  these  arrests,  were  conducted  on 
a  scale  that  seems  astonishing  when  we  recall  that  this 
Cabinet  minister  was  at  the  same  time  in  charge  of 
our  foreign  policy  and  that  his  official  acts  frequently 
trenched  upon  the  proper  field  of  various  other  depart- 
ment heads  and  even  of  the  President  himself.  Seward 
soon  organized  a  secret  service  for  the  purpose  of  appre- 
hending prisoners,  and  had  his  confidential  agents  placed 

"Letter  of  Lincoln  to  Stanton,  Feb.  11,  1864:  Nicolay  and  Hay, 
Works,  X,  4-5. 

4*  This  authority  was  conferred  in  President  Lincoln's  communication 
to  General  Scott,  April  27,  1861,  and  was  in  turn  delegated  by  General 
Scott  to  various  subordinates  (0.  R.,  Ser.  II,  Vol.  2,  p.  19;  Ser.  I,  Vol. 
51,  pt.  1,  pp.  337,  409).  A  similar  order  of  suspension  was  issued  cov- 
ering the  Florida  coast  on  May  10,  1861,  and  another  applying  to 
the  vicinity  of  the  military  line  from  New  York  to  Washington  on 
July  2,  1861.  The  line  within  which  su.'pension  was  authorized  was 
extended  to  Bangor,  Maine,  on  October  14,  1861.    {Ibid.,  p.  497.) 


150  THE  CONSTITUTION  UNDER  LINCOLN 

at  strategic  points,  especially  at  the  ports  and  along  the 
border,  in  order  to  prevent  the  departure  and  secure  the 
arrest  of  suspected  persons.  Passports  were  required  of 
persons  entering  or  leaving  the  country  and  in  this  way 
those  deemed  to  be  dangerous  were  intercepted. 

Sometimes  the  arrests  were  made  by  Seward's  confiden- 
tial agents,  sometimes  by  the  local  police  on  direct  order 
of  Seward,  and  at  other  times  by  the  military  authorities 
of  the  United  States  or  by  marshals  of  the  Federal  courts. 
The  arrests  were  made  on  suspicion.  Prisoners  were  not 
told  why  they  were  seized,  nor  did  the  authorities  investi- 
gate the  matter  sufiiciently  to  substantiate  the  charges 
prior  to  arrest.  As  Frederic  Bancroft  shows,  in  his  ad- 
mirable biography  of  Seward,  the  Secretary  of  State 
often  proceeded  without  adequate  proof,  and  the  depart- 
ment "never  made  up  its  case."  Obviously  the  purpose 
of  the  whole  process  was  temporary  military  detention, 
not  trial  before  the  courts.  The  object  in  view  was  pre- 
cautionary, and  the  chief  concern  of  the  Government  was 
to  seize  spies  or  other  confidential  agents  of  the  Con- 
federate Government,  rather  than  to  confine  men  for 
vague  "disloyalty."  ^° 

As  to  the  treatment  of  political  prisoners,  the  evidence 
reveals  little  if  any  basis  for  the  sensational  account 
given  in  Marshall's  American  Bastille,^^  which  was  writ- 
ten the  subject  of  arrests  as  conducted  under  the  Department  of 
State,  see  Frederic  Bancroft,  Ldfe  oj  Seward,  II,  Ch.  xxiv;  Ann.  Cyc, 
1862,  pp.  508  et  seq.;  0.  R.,  Ser.  II,  Vols.  1  and  2,  passiin.  The  Departs 
ment  of  State  kept  a  record  book  entitled  "Arrests  for  Disloyalty," 
containing  memoranda  concerning  prisoners.  This  is  published  in  part 
in  0.  R.,  Ser.  II,  Vol.  2,  pp.  290  ct  seq.  The  writer  has  examined  the 
"domestic  correspondence"  and  similar  papers  of  the  State  Department 
without  discovering  data  of  great  significance  beyond  what  has  been 
published. 

'"John  A.  Marshall,  The  American  Bastille:  A  History  of  Illegal 
Arrests  and  Imprisonments  during  the  Civil  War  (Phila.,  1869).  The 
author  of  this  abusive  book  was  the  officially  appointed  historian  of 
an  association  of  prisoners  of  state. 


ARBITRARY  ARRESTS  151 

ten  not  as  an  historical  study  but  as  an  ex  parte  denuncia- 
tion of  the  Government.  Prisoners  were  not  brutally 
treated;  and,  though  their  prison  terms  were  not  pleas- 
ant, such  hardships  as  i:hey  suffered  were  due  to  lack  of 
room  and  general  conditions  of  prison  administration 
(many  of  which  still  exist)  rather  than  to  intentional 
governmental  abuse.  Comforts  were  not  denied  to  pris- 
oners and  they  were  allowed  to  receive  articles  sent  by 
friends.  Under  inspection  they  were  permitted  to  trans- 
mit and  receive  letters  and  to  obtain  newspapers.  By 
special  permission  they  could  receive  visitors.  Seward 
gave  personal  attention  to  the  comfort  of  the  prisoners, 
and  the  officers  having  them  in  charge  seem  in  general 
to  have  acted  in  the  same  spirit.^^ 

In  February,  1862,  two  important  steps  were  taken. 
A  sweeping  order  provided  for  a  wholesale  release  of 
political  prisoners,  and  the  control  of  this  branch  of  the 
public  business  was  transferred  from  the  State  to  the 
War  Department.-^  In  effecting  these  releases  a  special 
commission  was  appointed  which  operated  under  the 
Secretary  of  War.^^ 

So  far  the  suspension  of  the  habeas  corpus  privilege 
had  been  of  limited  application.  The  first  measure  of 
general  scope  touching  the  suspension  of  this  vital  guar- 

''O.  R.,  Ser.  II,  Vol.  2,  pp.  Ill,  118. 

"The  executive  order  transferring  the  power  to  make  extraordinary 
arrests  from  the  State  to  the  War  Department  was  issued  on  February 
14,  1862.  By  the  same  order  the  President  directed  all  political  pris- 
oners to  be  released  on  subscribing  to  a  parole  to  render  no  aid  or 
comfort  to  the  enemy,  amnesty  being  granted  for  past  offenses. 
Spies  were  not  included  in  this  order  of  release,  and  others  might  be 
excepted  at  the  discretion  of  the  Secretaiy  of  War.  (Nicolay  and 
Hay,  Works,  VII,  100;  0.  R.,  Ser.  II,  Vol.  2,  pp.  221-223.) 

"  This  commission,  consisting  of  Judge  Edwards  Pierrepont  and  Gen- 
eral John  A.  Dix,  effected  many  releases  in  February,  1862,  and  the 
succeeding  months.  For  lists  of  prisoners  so  released,  see  0.  R.,  Ser.  II, 
Vol.  2,  pp.  261,  277,  285.  In  the  same  volume  much  of  the  corre- 
spondence of  the  commission  is  to  be  found. 


152  THE  CONSTITUTION  UNDER  LINCOLN 

antee  was  taken  on  September  24,  1862.  President  Lin- 
coln then  proclaimed  that  during  the  existing  insurrec- 
tion all  rebels  and  insurgents,  all  persons  discouraging 
enlistment,  resisting  the  draft,  or  guilty  of  any  disloyal 
practice  were  subject  to  martial  law  and  liable  to  trial  by 
courts-martial  or  military  commissions.  Regarding  such 
persons,  wherever  found,  the  habeas  corpus  privilege  was 
authorized  to  be  suspended.^* 

That  all  this  procedure  was  arbitrary,  that  it  involved 
the  withholding  of  constitutional  guarantees  normally 
available,  is  of  course  evident.  Prisoners  were  not  taken 
on  sworn  charges,  but  simply  arrested  under  executive 
order.  They  were  released  without  being  brought  to 
trial.  At  the  time  when  arrests  were  being  actively 
pushed,  the  prosecuting  oflBcers  of  the  Government  were 
quite  lax  in  the  bringing  of  indictments  and  in  promot- 
ing the  judicial  prosecution  of  those  who  were  actually 
violating  the  laws. 

It  would  be  a  mistake,  however,  to  suppose  that  all 
the  conditions  of  summary  justice  were  present.  The 
number  of  arrests  made,  though  very  large,  has  been 
commonly  exaggerated.^^     There  was  no  "system"  by 

**  Richardson,  Messages  .  .  .  oj  the  Presidents,  VI,  98. 

"This  subject  was  examined  by  J.  F.  Rhodes,  for  whom  a  thorough 
search  of  the  records  was  made  by  Col.  F.  C.  Ainsworth,  Chief  of 
the  Record  and  Pension  Office,  War  Department.  The  records  of 
the  Commissary  General  of  Prisoners  were  found  to  contain  the  names 
of  13,535  citizens  arrested  and  confined  in  military  prisons  from  Feb- 
ruary, 1862  to  the  end  of  the  war.  To  this  one  would  have  to  add 
those  arrested  under  authority  of  the  Navy  and  State  Departments 
and  those  confined  in  State  prisons  and  penitentiaries.  Even  when 
these  allowances  are  made,  however,  the  number  would  be  much  less 
than  38,000,  which  was  the  exaggerated  guess  of  Alexamlcr  Johnston 
in  Laylor's  Cyclopedia  (ad.  verb.  "Habeas  Corpus").  (Rhodes,  His- 
tory oj  United  States,  IV,  230,  n.  2.)  Through  the  kindness  of  the 
Adjutant  General,  a  further  search  on  this  subject  was  made  for  the 
author,  but  without  yielding  any  important  new  conclusions.  A  long 
communication  from  the  Adjutant  General  was  received,  from  which 
the  following   may   be  quoted:     "Answering  your  general   inquiry  as 


ARBITRARY  ARRESTS  153 

which  men  were  quickly  advanced  to  the  scaffold  or  to 
terms  of  imprisonment.  There  was  no  "revolutionary 
tribunal"  such  as  that  by  which  the  guillotine  was  fed 
during  the  terror  in  France,  nothing  similar  to  the  "Star 
Chamber"  of  the  Tudor  period  in  England. 

The  practice  of  the  Government  throughout  the  war 
demonstrated  the  fact  that  the  suspension  of  the  habeas 
corpus  privilege  does  not  automatically  institute  martial 
law.  It  is  by  no  means  true,  as  many  supposed  at  the 
time  of  Lincoln's  proclamation,  that  the  suspension  sets 
aside  all  law.  It  merely  permits  prisoners  to  be  held 
until  it  is  consistent  with  the  public  safety  for  them  to 
be  either  tried  or  released.  It  is  not  the  writ  that  is 
suspended;  it  is  the  privilege.^^  The  writ  may  still  issue 
on  petition,  but  there  is  no  compulsion  to  obey  its  man- 
date if  the  prisoner,  as  stated  in  the  return,  is  held 
by  adequate  authority.  "Suspension"  allows  summary 
arrest,  permits  detention  without  judicial  hearing  to 
show  cause,  and  without  indictment  on  the  basis  of  an 
offense  recognized  by  the  civil  law.  The  prisoners  are 
merely  held  till  the  emergency  passes,  and  then  they  are 
either  released  or  tried  in  the  civil  courts. 

Martial  law,  on  the  other  hand,  allows  a  military  trial 
for  offenses  unknown  to  the  civil  law,  and  permits  the 
execution  of  sentences  for  which  the  civil  law  offers  no 

to  what  can  be  added  to  the  statement  made  to  Mr.  Rhodes,  I  regret 
to  say  that  I  am  not  able  to  furnish  you  any  more  definite  informa- 
tion as  to  the  approximate  aggregate  number  of  such  [political] 
prisoners.  .  .  .  Notwithstanding  the  many  mentions  of  the  subject  of 
political  or  citizen  prisoners  in  the  printed  Official  Records,  for  the 
reasons  stated  by  General  Ainsworth  to  Mr.  Rhodes,  and  for  other 
reasons  that  could  be  added,  I  do  not  believe  that  it  will  ever  be  pos- 
sible for  any  one  to  gather  from  any  source  an  approximately  definite 
estimate  of  the  total  number  of  such  prisoners  held  by  Federal  authori- 
ties during  the  Civil  War."  (Letter  of  Major  General  Robert  C. 
Davis,  Adjutant  General  of  the  United  States,  to  the  writer,  June 
26,  1925.) 
"Ex  parte  Milligan,  71  U.  S.  130-131. 


154  THE  CONSTITUTION  UNDER  LINCOLN 

basis.  It  is  true  that  mere  detention  of  the  prisoner 
might  itself  constitute  a  considerable  grievance,  and 
might  be  so  prolonged  as  to  amount  to  heavy  punish- 
ment ;  but  this  is  certainly  a  milder  infringement  of  lib- 
erty than  the  rapid  completion  of  all  the  steps  of  a  sum- 
mary process,  including  the  execution  of  the  sentence.^^ 
The  compensating  element  in  the  situation  is  that  while 
the  privilege  is  being  suspended,  the  "public  safety"  is 
being  guarded  as  the  Constitution-makers  contemplated; 
and,  if  the  power  of  arrest  be  not  abused,  unavoidable 
wrong  done  to  a  few  individuals  may  perhaps  be  tolerated 
in  view  of  the  promotion  of  general  security. 

Considering  the  imperative  demands  of  the  emergency, 
a  fair  amount  of  restraint  was  shown  in  the  making  of 
arrests.  An  examination  of  the  orders  issued  from  Wash- 
ington and  from  the  various  department  headquarters 
reveals  a  considerable  degree  of  caution.  Mere  disloyal 
remarks  were  to  be  overlooked,  but  such  violence  of  word 
or  act  as  would  disturb  the  peace  was  to  be  deemed 
sufiScient  cause  for  arrest.-^  Higher  officers  sought  to 
check  the  tendency  of  subordinates  to  make  vexatious 
arrests  on  mere  suspicion,  and  many  annoyances  of  con- 
duct short  of  actual  aid  to  the  enemy  were  tolerated. 
In  Baltimore  in  1862  the  order  went  out  that  no  citizen 
was  to  be  arrested  and  confined  for  disloyalty  or  treason- 
able practices  except  on  written  charges  under  oath.^^ 
Not  only  the  President  himself  but  the  chief  generals 
and  members  of  the  Cabinet  acted  as  restraining  agencies 
to  temper  the  severity  of  overzealous  officers. 

"It  is  true  that  the  President's  proclamation  of  September  24,  1862, 
declared  disloyal  persons  subject  to  martial  law  and  liable  to  trial  by 
courts-martial  or  military  commissions;  but  the  fact  remains  that  mili- 
tary detention  followed  by  release  on  parole  was  the  practice  adopted  in 
the  great  majority  of  cases. 

"  0.  It.,  Ser.  II,  Vol.  2,  p.  186. 

"Ibid.,  Ser.  II,  Vol.  4,  p.  368. 


ARBITRARY  ARRESTS  155 

In  spite  of  all  this  caution,  frivolous  and  unwarranted 
arrests  were  not  infrequently  made.  In  the  case  of  many 
of  the  political  prisoners  no  papers  could  be  found  stat- 
ing the  charges  against  them,  and  it  cannot  be  denied 
that  some  individuals  suffered  unjustly.  Subordinates 
sometimes  acted  under  a  misapprehension  of  the  extent 
of  their  authority,  erroneously  supposing  that  because 
the  "writ  was  suspended,"  all  forms  of  law  were  gone. 
In  disregard  of  restraining  instructions  from  Washing- 
ton, prisoners  were  sometimes  taken  on  trivial  charges, 
such  as  "being  a  noisy  secessionist,"  giving  sympathy  to 
the  "rebels,"  selling  Confederate  "mottoes  and  devices," 
or  "hurrahing  for  Jeff  Davis."  An  Episcopal  minister  of 
Alexandria,  Virginia,  was  arrested  for  habitually  omit- 
ting the  prayer  for  the  President  of  the  United  States  as 
required  by  the  church  service.^" 

But  as  a  rule  the  men  confined  in  the  Old  Capitol 
Prison,  Fort  Lafayette,  Fort  McHenry,  or  the  other  state 
prisons  were  there  for  good  reason.  They  had  been  act- 
ing as  Confederate  agents,  furnishing  supplies  to  the 
enemy,  encouraging  desertion  from  the  service  of  the 
United  States,  committing  outrages  upon  Unionists, 
stealing  military  supplies,  destroying  bridges,  engaging 
in  bushwhacking,  making  drawings  of  fortifications,  car- 
rying "treasonable"  correspondence,  intimidating  loyal 
voters,  or  otherwise  materially  assisting  the  enemy. 
Many  of  the  prisoners  were  actual  spies.^^     After  the 

^"Ibid.,  Ser.  II,  Vol.  2,  pp.  212-213.  When  three  clergymen  of  New 
Orleans  were  arrested  for  omitting  part  of  the  service,  A.  Oakey  Hall, 
district  attorney  of  the  City  and  County  of  New  York,  addressed  a 
letter  to  Secretary  Stanton  on  November  12,  1862,  suggesting  their 
release  on  the  ground  that  state  interference  with  matters  of  religious 
discipline  is  "foreign  to  the  genius  of  our  institutions."  (A.  0.  Hall 
to  Stanton,  Nov.  12,  1862:  Stanton  Papers,  IX,  No.  51991.)  As  we 
have  seen,  President  Lincoln  felt  likewise.    SxLjrra,  p.  148. 

"The  elaborate  material  presented  in  the  second  series  of  the  Official 
Records  of  the  war  must  be  examined  for  a  comprehensive  view  of  the 


156  THE  CONSTITUTION  UNDER  LINCOLN 

War  Department  assumed  control  of  these  matters  ar- 
rests were  forbidden  unless  authorized  by  the  proper 
authority  in  Washington  or  by  State  executives  under 
whose  direction  provost  marshals  were  in  some  States 
directed  to  act  in  the  early  part  of  the  war.^^ 

If  arrests  were  often  peremptory',  there  was  compensa- 
tion in  the  lenient  policy  regarding  releases.  One  pris- 
oner, who  was  shown  by  "abundant  evidence"  to  be  a 
"shrewd  and  dangerous  spy,"  was  released  on  parole  to 
have  no  connection  with  the  enemy,  supply  him  no 
information,  and  in  no  way  promote  resistance  to  the 
authority  of  the  United  States.^^  Release  on  taking  the 
oath  of  allegiance  was  granted  in  another  case  to  a  man 
who,  with  avowed  treasonable  intent,  had  conveyed  mili- 
tary information  to  the  enemy.^*  Where  the  apprehen- 
sion had  been  merely  precautionary,  or  where  no  papers 
were  filed  giving  charges,  releases  were  uniformly  granted. 
The  same  may  be  said  with  regard  to  arrests  made  with- 
out suitable  authority.  Failing  health  or  mentality,  pov- 
erty, or  other  misfortune,  had  considerable  weight  in 
determining  the  question  of  discharge. 

In  making  these  releases,  appropriate  conditions  were 
specified.  In  addition  to  the  oath  of  allegiance,  definite 
stipulations,  suited  to  individual  cases,  were  often  ex- 
acted, the  parties  agreeing,  for  example,  not  to  visit  any 
of  the  "insurgent  States,"  or  hold  correspondence  with 
any  persons  residing  in  them.  Some  releases,  however, 
were  unconditional;  and  certain  persons  who  objected  on 
scruple  to  the  form  of  oath  asked  were  permitted  to  take 

subject  of  arbitrary  arrests.  A  table  listing  briefly  the  charges  against 
certain  prisoners  (and  thus  illustrating  the  reasons  for  arrests)  is 
found  in  0.  R.,  Ser.  II,  Vol.  2,  pp.  277-279. 

"Report  of  the  Secretary  of  War,  December  1,  1862:  House  Ex. 
Doc.  No.  1,  37  Cong.,  3  sess. 

"Case  of  Ellie  M.  Poole:     0.  R.,  Ser.  Il,  Vol.  2,  p.  306. 

•*Case  of  Isaac  G.  Mask:     ibid.,  p.  310. 


ARBITRARY  ARRESTS  157 

the  oath  in  a  different  form.^^  Prisoners  were  occasion- 
ally held  as  "hostages,"  and  discharge  in  such  cases  would 
be  conditional  upon  a  like  discharge  of  Union  men  in 
Confederate  hands.  Charles  J.  Faulkner,  for  instance,  at 
one  time  minister  to  France,  was  released  from  Fort 
Warren  on  condition  that  Alfred  Ely,  a  New  York  Con- 
gressman captured  by  the  Confederates  at  Bull  Run, 
should  be  restored  to  his  seat  in  Congress.^^  Where 
releases  were  denied,  this  was  usually  due  to  refusal  to 
take  the  oath,  uncompromising  hostility  to  the  Govern- 
ment, proud  protestations  of  "rebel"  sympathies,  or 
serious  and  well  substantiated  offenses.^'^ 


IV 

As  a  result  of  the  suspension  of  constitutional  privi- 
leges, conflicts  were  numerous  between  military  and  civil 
authorities.  Arrests  and  seizures  made  by  provost  mar- 
shals or  other  military  oflacers  were  frequently  chal- 
lenged by  the  courts;  but  such  officers  were,  as  a  rule, 
under  orders  to  disregard  judicial  mandates  and  resist  the 
execution  of  writs.  The  numerous  resulting  conflicts 
were  typical  of  the  legal  confusion  of  the  times. 

Clashes  of  this  sort  often  occurred  in  connection  with 
the  draft,  though  this  is  a  field  in  which  the  supremacy 
of  the  military  authorities  was  to  be  presumed.     By 

"^Case  of  R.  H.  Alvey:    ibid.,  p.  349. 

"Ibid.,  p.  463. 

"The  following  bit  of  correspondence  between  Lincoln  and  Stanton 
throws  light  on  the  subject  of  the  release  of  prisoners.  Lincoln  wrote 
the  Secretary  of  War  as  follows  on  August  22,  1864:  "I  very  much 
wish  to  oblige  [H.  W.]  Beecher  by  relieving  Howard  [imprisoned  for 
complicity  in  the  "bogus  proclamation"  published  in  the  New  York 
World  on  May  18,  1864]  but  I  wish  you  to  be  satisfied  when  it  is  done. 
What  say  you?"  Stanton  replied,  "I  have  no  objection  if  you  think 
it  right  and  this  a  proper  time,"  whereupon  Lincoln  gave  the  order: 
"Let  Howard  ...  be  discharged."    (Stanton  Papers,  XXII,  No.  64446.) 


158  THE  CONSTITUTION  UNDER  LINCOLN 

statute  the  decisions  of  the  boards  of  enrollment  regard- 
ing exemptions  was  to  be  final,  but  the  courts  claimed 
jurisdiction  both  before  and  after  the  boards  had  given 
their  decisions.  Injunctions,  habeas  corpus  writs,  attach- 
ments for  contempt,  and  other  judicial  processes  were 
interposed  as  obstacles  to  the  enrolling  and  drafting 
officers.  One  judge  ordered  the  records  of  the  board  to 
be  brought  into  court,  but  the  order  was  not  obeyed. 
At  times  the  obstructive  tactics  of  the  courts  seemed  cal- 
culated to  defeat  the  task  of  raising  troops  and  arresting 
deserters,  either  by  throwing  officers  into  custody,  or  by 
keeping  them  so  constantly  before  the  courts  as  to  pre- 
vent the  performance  of  their  duties.^®  To  overcome 
this  obstruction,  provost  marshals  were  instructed  by  the 
War  Department  to  decline  producing  prisoners  in  court 
in  matters  clearly  within  military  jurisdiction,  and  the 
serving  of  civil  process  in  camps  and  forts  was  re- 
sisted.^^  Very  often,  however,  writs  issued  by  Federal 
courts,  as  for  instance  habeas  corpus  writs  for  the  release 
of  minors  who  had  enlisted  without  their  parents'  con- 
sent, were  obeyed  by  military  officers.  Disregard  of  judi- 
cial orders,  on  the  other  hand,  usually  had  a  valid  con- 
nection with  the  necessities  of  military  duty. 

It  is  not  difficult  to  understand  the  reluctance  of  mili- 
tary officers  to  subject  themselves  to  judicial  process.  To 
obey  a  judicial  writ,  a  commander  would  have  to  abandon 
his  duty,  leave  his  post,  and  answer  the  court's  mandate. 
Resistance  would,  under  varying  circumstances,  make 
the  officer  subject  to  an  attachment  for  contempt,  crim- 
inally liable  for  defying  the  sheriff  or  marshal,  guilty  of 
murder  if  he  should  take  a  Hfe  in  the  exercise  of  disputed 
military  authority,  or  subject  to  action  for  damages  due 

""  Report  of  Provost  Marshal  General,  November  17,  1863:     House 
Ex.  Doc.  No.  1,  38  Cong.,  1  sess.,  p.  113. 
"O.  R.,  Ser.  Ill,  Vol.  3,  pp.  378-380. 


ARBITRARY  ARRESTS  159 

to  false  imprisonment.  If  the  writ  were  to  prevail  over 
the  action  of  a  general  or  provost  marshal,  then  the  court 
could  tie  the  hands  of  the  ofl&cer,  and  (as  was  said  in 
Luther  vs.  Borden)  the  army  or  militia  would  become  a 
"mere  parade." 

The  complexity,  delay,  and  clumsiness  of  judicial  pro- 
cedure were  felt  to  be  unsuited  to  the  effective  handling 
of  a  threatening  situation.  To  use  Stanton's  words,  the 
machinery  of  the  courts  "seemed  .  .  .  designed  not  to 
sustain  the  Government  but  to  embarrass  and  betray 
it."  ^"  Even  for  such  offenses  as  enticing  men  to  desert 
or  harboring  deserters  (offenses  likely  to  be  engendered 
by  the  draft),  all  the  forms  of  a  judicial  proceeding  would 
have  to  be  gone  through.  A  true  bill  must  be  presented 
by  a  slow  plodding  grand  jury;  the  defendant  must  be 
admitted  to  bail;  and  after  considerable  delay  a  trial 
must  follow  with  its  challenging  of  jurors,  examination 
of  witnesses,  and  numerous  dilatory  motions  devised  by 
clever  counsel.  Such  cases  were  outside  the  usual  rou- 
tine of  the  Federal  courts;  they  required  unusual  study 
on  the  part  of  the  law  officers;  and  it  commonly  hap- 
pened that  a  mere  indisposition  to  prosecute  might  cause 
the  ultimate  dismissal  of  cases  in  which  emphatic  indict- 
ments had  been  brought.  There  was  many  a  case  in 
which  the  defendant  who  had  been  admitted  to  bail 
failed  to  appear  at  the  trial,  and  the  court  merely 
ordered  the  forfeiture  of  the  recognizance,  later  setting 
aside  even  this  penalty. 

There  was,  moreover,  a  basic  physical  inability  of  the 
judicial  arm  to  cope  with  a  situation  involving  turbu- 
lence and  widespread  violence.  Military  authorities  sin- 
cerely believed  that  they  could  not  leave  matters  to  the 
ineffectual  efforts  of  the  judiciary.     Theoretically,  per- 

*^Ihid.,  Ser.  II,  Vol.  2,  p.  222. 


\a)  rui:  (x)NSTrri'TioN  under  Lincoln 

haps,  thert"!  is  no  defmcd  limit  to  tho  twpivnsioii  of  tho 
exwutory  offioci's  of  a  court,  for  in  case  of  trouble  deputy 
n\arshals  or  deputy  sheriti's  nmy  be  appointed,  and  if 
utressiuy.  a  /h\n»'  comitatus  may  be  called  out.  But 
practically  judicial  resources  of  this  sort  are  decidetlly 
limited.  In  IHx-ember.  1S5S,  and  February,  1859,  a 
Federal  marshal  in  Kansas,  when  confronted  with  serious 
violence  on  the  part  of  lawless  desperatloes,  tletermined 
to  keep  a  stamling  posse  continuously  in  the  field  until 
the  criminals  were  arrested  or  driven  out.  Several  hun- 
dred men  weiv  assembled  for  this  purpose,  and  it  was 
not  until  orders  were  receivetl  from  Washington  that 
the  men  wei"e  disbanded. 

This  incident  admirably  illustrated  the  marshal's  limi- 
tations in  the  t\>rcible  execution  of  jutlicial  processes. 
Though  no  statute  then  dctint\l  the  powei"s  of  marshtds 
to  call  in  the  aid  of  a  posse  in  the  performance  of  their 
othcial  duties,  it  was  made  clear  in  this  case  that  the 
mai"shal  is  a  ministerial  othcer  intrusted  with  the  execu- 
tion of  specific  judicial  orders  or  writs,  and  that  he  is  by 
no  means  authorized  to  maintain  a  quasi-military  force 
or  to  keep  a  large  bcxly  of  men  in  the  field  for  an  indefi- 
nite period  in  ouler  to  break  up  an  insurivction.  The 
employment  of  a  posse,  it  was  pointed  out,  must  be  tem- 
porary and  for  a  specific  object,  as  for  instance  the  arrest 
of  particular  criminals.  It  must  not  partake  of  the 
natuiv  of  a  militaiy  expedition.  Suppivssion  of  an 
insuntx'tion  is  an  executive,  not  a  judicial,  function.** 

**  '  •  ooncertung  the  conditions  justifying  the  empJoyi"*-^^^ 

of  a  ,'i',>.>t  n".-.aii«{  an.>i!e  m  the  claim  of  W.  F.  Fain,  marshal  of  the 
territory  of  Kansas,  for  reimbursement  of  expenses  incurreil  in  keep- 
ing a  large  posse  in  the  tiekl  for  a  considerable  time.  The  following 
papers  in  the  tiles  and  letterbooks  of  the  Attorney  Cienenil's  otHce  bear 
upon  the  subject:  Letter  of  .Acting  Secretary  of  the  Interior  to  E. 
M.  Stanton.  Attorney  General.  March  I.  IS61 :  C.  B.  Smith.  Secretary 
of  the  Interior  to  the  President.  May  10.  1861:  J.  Hubley  Ashton, 
Acting  Attorney  Cleneral,  to  J.  M.  Schotield.  Secrt^tary  of  War,  Sep- 


ARBITRARY  ARRESTS  161 

Naturally  the  general  or  other  military  officer  who  was 
served  with  a  writ  which  he  felt  unable  to  respect, 
refused  to  let  his  hands  be  tied.  He  did  what,  under  the 
circumstances,  seemed  to  him  the  only  thing  to  do. 
Relying  on  the  President's  "suspension,"  he  disregarded 
the  writ  and  either  made  no  return  or  else  in  making 
the  return  cited  the  President's  orders  as  justification  for 
not  bringing  the  prisoner.  The  judge  who  allowed  the 
writ  to  issue  followed  it  in  some  cases  with  an  attach- 
ment for  contempt,  while  in  other  cases  he  merely 
"filed"  an  opinion  denouncing  the  usurpation. 

The  ]Merr>'man  case  is  typical  of  this  sort  of  conflict 
between  civil  and  military  authority,  and  brings  out  in 
clear  relief  the  cardinal  fact  that  while  the  President's 
suspension  of  the  habeas  corpus  privilege  was  being 
invoked  as  the  source  of  military-  control  over  civilians, 
many  of  the  judges  were  denying  the  validity  of  this 
suspension.  ^lerryman,  lieutenant  of  a  secessionist  drill 
company,  was  arrested  in  ^larylsmd,  taken  into  custody 
by  General  Cadwallader,  commander  of  the  department, 
and  confined  in  Fort  ^McHenrj-.^^  The  case  was  one 
among  hundreds,  and  a  failure  to  sustain  the  military 
power  here  would  have  caused  the  whole  system  of 
"poHtical  arrests"  on  executive  discretion  to  break  down. 
Hearing  the  petition  in  chambers,  Chief  Justice  Taney 
caused  a  writ  of  habeas  corpus  to  be  ser\'ed,  directing  the 
general  to  produce  "the  body"  in  court.  Cadwallader's 
instructions  were  to  hold  in  secure  confinement  all  per- 
sons implicated  in  treasonable  practices  and  to  decline 
for  the  time  to  produce  prisoners  where  writs  of  habeas 
corpus  were  issued,  by  whatsoever  authority. 

tember  10,  1868.    (The  Department  of  the  Interior  at  this  time  had  to 
do  with   the   defraying   of   imusual   expenses   connected   with   Federal 
judicial  prosecutions.) 
''0.  R.,  Ser.  n,  Vol.  1,  pp.  574-585;  17  Fed.  Cas.  144. 


162  THE  CONSTITUTION  UNDER  LINCOLN 

In  a  respectful  return  to  the  writ,  he  stated  the  cause 
for  which  Merryman  was  apprehended,  cited  the  Presi- 
dent's suspension  as  authority  for  the  detention,  and 
declined  to  obey  the  mandate.  Taney  then  issued  a  writ 
of  attachment  for  contempt  against  the  general,  but  the 
marshal  seeking  to  serve  this  writ  was  refused  entrance 
to  the  fort  and  would  have  encountered  superior  force 
had  he  attempted  by  a  posse  comitatus  to  compel  the 
general's  appearance.  The  Chief  Justice  therefore  con- 
tented himself  with  filing  the  famous  opinion  which  we 
have  considered  in  the  preceding  chapter.  As  he  had 
met  resistance  in  pursuance  of  duty,  he  put  the  proceed- 
ings, including  the  opinion,  on  record  with  the  clerk  of 
the  Federal  Circuit  Court  in  Maryland  and  caused  a  copy 
to  be  transmitted  to  the  President,  leaving  to  that  "high 
official"  the  obligation  of  causing  "the  civil  process  of 
the  United  States  to  be  enforced."  ^^ 

A  conflict  similar  to  that  of  the  Merryman  case 
occurred  in  Washington  in  October,  1861,  when  Provost 
Marshal  Porter  found  himself  at  odds  with  Judge  Dunlop 
for  resisting  a  habeas  corpus  writ.^^  In  this  case  the 
deputy  marshal  refused  to  serve  the  writ  of  attachment 

**The  later  features  of  the  Merr>'man  case,  following  the  famous 
opinion  of  Chief  Justice  Taney,  are  obscure,  and,  so  far  as  the  writer's 
observation  has  gone,  have  been  overlooked.  Shortb'  after  the  delivery 
of  Taney's  opinion,  Merrj-man  was  released  from  military  confinement 
in  Ft.  McHenry  and  transferred  to  civil  authority.  An  indictment  for 
treason  was  filed  against  him  in  the  United  States  District  Court  at 
Baltimore  and  he  entered  into  a  recognizance  in  the  sum  of  $20,000 
for  his  appearance  in  the  Circuit  Court  of  the  United  States  for  the 
district  of  Marj'land,  to  which  the  case  was,  on  November  12,  1861, 
remitted.  The  matter  went  no  further,  and,  after  continuance  by 
order  of  the  court,  the  case  was  ultimately  dropped.  This  inconclusive 
termination  of  such  war  cases  as  were  brought  before  the  civil  courts 
was  almost  universal.  (0.  R.,  Ser.  II,  Vol.  2,  p.  226;  Letter  of  A.  L. 
Spamcr,  Clerk  of  the  District  Court  of  the  United  States  at  Baltimore, 
to  the  writer,  February  6,   1921.) 

**Ann.  Cyc,  1861,  pp.  365-367;  Letters  mid  Diaries  of  John  Hay,  I,  47 
(quoted  in  Horace  White,  Lyman  Trumbull,  190). 


ARBITRARY  ARRESTS  163 

for  contempt,  being  informed  by  Secretary  Seward  that 
the  President's  suspension  of  the  privilege  forbade  him 
to  serve  process  upon  any  officer.  (It  would  have  been 
truer,  perhaps,  to  say  that  the  President's  action  made 
compliance  with  the  writ  unnecessary,  rather  than  that 
it  forbade  serving  the  writ.) 

Taking  his  cue  from  Taney,  the  judge  merely  ''filed" 
an  opinion  declaring  that  the  case  was  without  parallel 
in  the  judicial  history  of  the  United  States;  that  the 
court,  having  exhausted  every  practical  remedy  to  up- 
hold its  lawful  authority,  found  itself  powerless  before 
superior  force;  and  that  the  issue  rested  with  the 
President."*^ 


It  was  for  the  purpose  of  terminating  such  conflicts 
that  Congress  passed  the  Habeas  Corpus  Act  of  1863 
which  attempted  a  sort  of  compromise  between  camp 
and  bench.^^  On  the  one  side  the  President's  authority 
to  "suspend"  was  recognized,  military  commanders  were 
relieved  from  the  obligation  to  answer  the  writ,  and 
officers  subjected  to  process  for  arrests  or  imprisonments 

*' Another  case  of  this  general  sort  was  that  of  John  G.  Mullen,  a 
minor  who  had  enlisted  in  Maryland  without  his  father's  consent. 
When  a  deputy  marshal  of  the  Federal  court  tried  to  serve  a  writ  of 
habeas  corpus  in  the  case,  the  officer  to  whom  the  writ  was  presented 
handed  it  back,  remarking  that  he  "would  see  the  court  and  marshal 
damned  before  delivering  up  one  of  his  men."  A  long  communication 
concerning  this  case  was  sent  to  the  Federal  district  judge  by  Major 
W.  W.  Morris,  who  declared  that  United  States  soldiers  were  per- 
fidiously attacked  and  murdered  in  the  streets  and  that  no  arrests 
were  made  for  these  crimes,  while  an  illegal  State  legislature  was  de- 
bating the  abrogation  of  the  Federal  compact.  Under  these  circum- 
stances, he  considered  that  the  habeas  corpus  writ  "might  depopulate 
this  fortification."  (Major  W.  W.  Morris  [commanding  at  Ft.  Mc- 
Henry,  Baltimore]  to  U.  S.  District  Judge  W.  F.  Giles,  May  6,  1861: 
Attorney  General'-s  Papcr.«.) 

"  U.  S.  Stat,  at  Large,  XII,  755. 


164  THE  CONSTITUTION  UNDER  LINCOLN 

were  given  both  immunity  and  the  protection  of  Federal 
courts.  On  the  other  side,  lists  of  State  prisoners  were 
to  be  furnished  to  the  circuit  and  district  courts,  and  if 
grand  juries  found  no  indictments  against  them  they 
were  to  be  discharged  by  judicial  order  upon  taking  the 
oath  of  allegiance  and  entering  into  recognizance  for 
good  behavior,  of  which  the  court  was  to  fix  the  sum. 
Where  such  lists  were  not  furnished,  a  judge  might  dis- 
charge the  prisoner  on  habeas  corpus  if  satisfied  as  to 
the  allegations  of  the  petition. 

Had  this  law  been  complied  with,  the  effect  would 
have  been  to  restore  the  supremacy  of  the  civil  power; 
for  the  act  contained  provisions  which,  if  enforced,  would 
have  greatly  modified  the  President's  control  of  prisoners. 
In  the  early  part  of  the  war,  both  arrests  and  releases 
were  at  the  discretion  of  the  President  acting  through 
the  military  officers.  It  is  literally  true  that  the  word  of 
the  President  (or  that  of  a  Cabinet  secretaiy  whose 
power  originated  in  the  President)  was  enough  to  place 
a  man  in  confinement,  and  that  the  acts  of  generals  and 
provost  marshals  in  whom  discretion  reposed  were  con- 
structively the  President's  own  acts.  When  orders  came 
from  Washington  they  usually  emanated  from  the  Sec- 
retary of  State,  or,  later,  from  the  Secretary  of  War; 
but  in  law  they  were  the  President's  orders,  and  had  the 
President  chosen  to  specify  certain  persons  for  arrest,  the 
system  in  force  would  have  permitted  this.  In  fact, 
Lincoln  himself  sometimes  gave  the  order  for  arrest.*^ 

"  J.  F.  Rhodes  stated  that  he  had  not  found  an  instance  in  which  the 
President  himself  directed  an  an-est,  though  he  "permitted  them  all." 
Rhodes,  History  of  United  States,  IV,  235.  The  following  order  was 
signed  and  doubtless  dictated  by  the  President:  "Executive  Mansion, 
Washington  City,  June  15,  1864.  Whereas  it  has  come  to  my  knowl- 
edge that  [J.  S.  C]  of  West  Virginia  is  engaged  in  treasonable  .  .  . 
correspondence  with  ...  an  agent  of  the  rebels  .  .  .  and  has  invited 
.  .  .  the  said  agent  ...  to  come  to  the  city  of  Washington  to  confer 
with  him  ...  it  is  ordered  that  Colonel  Wisewell,  Military  Governor 


ARBITRARY  ARRESTS  165 

Always  it  was  the  President's  authority  that  was  ap- 
pealed to  when  an  oflficer  holding  a  prisoner  declined  to 
produce  him  in  court.^^  As  to  releases,  the  President 
assumed  full  discretion,  and  his  official  word  was  all  that 
was  needed  to  discharge  a  political  prisoner. 

The  Habeas  Corpus  Act,  however,  distributed  the 
authority  previously  concentrated  in  the  President. 
Congress  now  declared  the  duty  of  officers  having  cus- 
tody of  prisoners,  making  it  mandatory  for  them  to  obey 
a  judge's  order  for  discharge. ^^  The  requirement  that 
lists  of  political  prisoners  be  furnished  to  the  courts 
applied  to  future  as  well  as  previous  arrests,  and  the 
way  was  laid  by  congressional  action  for  the  speedy 
release  of  all  citizens  against  whom  no  violation  of 
Federal  law  could  be  charged.  Should  the  prisoners  be 
detained  beyond  twenty  days  without  the  furnishing  of 
such  lists,  then  on  petition  of  any  citizen  they  were  to  be 
discharged  on  the  same  terms  as  if  the  lists  had  been 
furnished. 

of  the  District  of  Washington,  arrest  and  take  into  custody  the  said 
[J.  S.  C]  and  hold  him  in  custody  until  further  order,  [signed] 
Abraham  Lincoln."     (Stanton  Papers,  No.  54238.) 

**  Not  only  could  the  Chief  Executive  disregard  the  mandates  of 
the  courts;  he  could  deny  information  to  Congress.  When  the  House 
of  Representatives  called  for  papers  regarding  the  arrest  of  the  police 
commissioners  of  Baltimore,  and  again  regarding  martial  law  in  Ken- 
tucky, the  President  declined  the  requests  on  the  ground  that  the  giving 
of  such  information  would  be  incompatible  with  the  public  interest. 
(Richardson,  Messages  .  .  .  of  the  Presidents,  VI,  33;  Sen.  Ex.  Doc. 
No.  61,  37  Cong.,  2  sess..  Vol.  V.) 

**The  act  provided  that,  while  the  privilege  was  suspended,  "no 
military  or  other  oflacer  [should]  be  compelled"  to  produce  the  pris- 
oners in  answer  to  the  writ.  After  grand  juries  had  met,  however,  and 
passed  upon  the  cases  of  the  prisoners,  those  not  indicted  were  to  be 
ordered  discharged  by  the  Federal  judge,  and  "every  officer  .  .  .  having 
custody  of  [any]  prisoner  [was]  directed  immediately  to  obey  and 
execute  [the]  judge's  order."  In  case  of  delay  or  refusal  to  obey  such 
order,  the  officer  was  to  be  subject  to  indictment  for  misdemeanor 
and  punished  by  a  fine  of  at  least  $500  and  imprisonment  in  the  com- 
mon jail  for  at  least  six  months.    {U.  S.  Stat,  at  Large,  XII,  755,  sec.  2.) 


166  THE  CONSTITUTION  UNDER  LINCOLN 

As  regards  military  ofl5cers,  then,  it  could  be  said  that, 
by  the  provisions  of  the  Habeas  Corpus  Act,  their  man- 
dates concerning  political  prisoners  were  to  come  from 
Congress,  and  it  was  intended  that  the  legislative  branch 
of  the  Government  should  to  that  extent  recover  au- 
thority from  the  executive.  A  like  recovery  was  to  be 
effected  by  the  judicial  branch,  for  prisoners  were  no 
longer  to  be  detained  by  presidential  authority,  but  were 
to  be  released  by  order  of  a  Federal  judge  unless  indicted 
by  a  grand  jury  for  offenses  against  the  United  States. 
The  act  represented,  therefore,  on  paper,  a  twofold 
vindication  of  the  civil  authority. 

Like  other  wartime  statutes,  however,  the  act  seems 
to  have  had  but  little  practical  effect.  Though  the  ques- 
tion of  its  enforcement  is  a  difficult  historical  problem, 
the  writer's  researches  have  brought  him  to  the  conclu- 
sion that  the  act  was  not  carried  out  in  sufficient  degree 
to  make  any  noticeable  difference  in  the  matter  of  the 
arrest,  confinement,  and  release  of  political  prisoners.^" 


"The  writer's  independent  study  of  this  subject  has  been  reenforced 
by  searches  made  for  him  by  the  kindly  cooperation  of  the  clerks  of 
various  Federal  courts.  Mr.  William  P.  Kapper,  Clerk  of  the  District 
Court  at  Indianapolis,  writes  as  follows:  "I  have  personally  gone 
through  all  of  the  order  books  of  both  the  Circuit  Court  of  the  United 
States  and  the  District  Court  of  the  United  States  covering  the  entire 
period  of  the  Civil  War  and  I  am  unable  to  find  that  there  was  ever 
any  list  of  prisoners  filed  by  the  Secretary  of  War  or  the  Secretary  of 
State,  and  there  appears  to  be  no  order  of  the  Court  ordering  the  re- 
lease of  any  citizens  held  by  military  authority  who  were  not  in- 
dicted." The  Clerk  of  the  District  Court  at  Cleveland,  Ohio,  Mr. 
B.  C.  Miller,  writes:  "I  carefully  leafed  the  journal  from  the  date 
of  the  passage  of  the  Act  until  1865  and  find  no  record  of  any  orders 
.  .  .  releasing  prisoners  under  this  Act."  Similar  results  were  obtained 
by  searching  the  records  of  other  courts,  and  a  special  search  in  the 
War  Department,  made  for  the  purpose  of  this  book,  failed  to  reveal 
any  measures  taken  in  compliance  with  the  act,  other  than  the  Judge 
Advocate  General's  letter  of  June  9,  1863  (mentioned  in  the  text  above), 
in  which  he  reported  that  Stanton's  instructions  to  furnish  a  list  of 
political  prisoners  to  the  courts  had  been  complied  with. 


ARBITRARY  ARRESTS  167" 

When  Stanton  directed  that  lists  of  prisoners  of  state 
be  furnished  to  the  judges  of  the  district  and  circuit 
courts  of  the  United  States,  Judge  Advocate  General 
Holt  reported  that  incomplete  lists  had  been  supplied, 
but  proceeded  at  once  to  criticize  the  act,  which  he  con- 
sidered poorly  framed  and  "extremely  difficult  of  con- 
struction." ^^  Holt  construed  the  act  as  not  applying  to 
prisoners  triable  by  military  tribunals,  or  under  sentence 
of  such  tribunals.  This  was  a  significant  exception,  be- 
cause it  left  the  executive  without  restraint  in  all  cases 
where  martial  law  was  instituted  and  where  military 
commissions  were  used  for  the  trial  of  citizens.  The 
Habeas  Corpus  Act  offered  no  effective  obstacle  in  the 
case  of  Vallandigham,  a  citizen  placed  under  military 
arrest  and  sentenced  by  a  military  tribunal.  In  the 
Milligan  decision  ^^  the  Supreme  Court  held  that  the  act 
should  properly  have  applied  to  citizens  subjected  to 
such  arrest  and  sentence,  which  was  declared  illegal  in 
non-military  areas;  but  this  decision  did  not  come  until 
after  the  war,  while  Holt's  interpretation  was  the  govern- 
ing rule  during  the  war.  Numerous  arrests  were  made 
after  March  3,  1863;  and,  as  Professor  Dunning  has 
pointed  out,  persons  arrested  after  that  time  were  re- 
leased, not  by  Federal  judges,  but  by  authority  of  the 
War  Department.^^  Since  the  Act  confirmed  the  Presi- 
dent's right  to  suspend  the  privilege  of  the  habeas  corpus 
writ,  and  afforded  immunity  to  officers  acting  under  the 
President's  orders,  a  certain  security  and  legal  sanction 


"Holt  to  Stanton,  June  9,  1863:     0.  R.,  Ser.  11,  Vol.  5,  p.  765. 

"The  Vallandigham  and  Milligan  cases  are  discussed  in  the  follow- 
ing chapter. 

*"  William  A.  Dunning,  in  Am.  Hist.  Rev.,  XXIV,  628.  Dunning  says 
further:  "As  to  the  peremptory  requirement  that  political  prisoners 
be  referred  to  the  courts,  some  perfunctory  attention  was  given  to  the 
act  immediately  after  its  passage,  but  the  War  Department  Boon  settled 
back  into  its  old  procedure."    {Ibid.,  p.  627.) 


168  THE  CONSTITUTION  UNDER  LINCOLN 

was  thus  given  to  a  procedure  for  which  the  President 
had  been  widely  criticized,  and  the  executive  branch 
could  thereafter  proceed  with  a  certain  assurance  that  it 
had  previously  lacked. 


CHAPTER  VIII 

MABTIAL    LAW    AND    MILITARY    COMMISSIONS 

I.   The  use  of  martial  law  during  the  Civil  War 
II.   Trial  of  citizens  before  military  commissions 

III.  Non-interference  with  the  military  commission  in  the 

Vallandigham  case 

IV.  "Martial  rule"  in  regions  of  unobstructed  civil  jus- 

tice declared  illegal  by  the  Supreme  Court  in  the 
Milligan  case:  Attitude  of  the  dissenting  judges 
V.   General    comments    concerning    summary   process    as 
employed  during  the  Civil  War 

In  the  arbitrary  arrests  which  were  discussed  in  the 
previous  chapter  the  application  of  military  power  was 
of  a  limited  sort,  and  the  extension  of  executive  author- 
ity stopped  short  of  the  establishment  of  a  strictly  mili- 
tary regime.  In  the  present  chapter  our  attention  will 
be  directed  to  further  degrees  of  military  rule.  Martial 
law,  we  shall  find,  was  declared  over  whole  States  or 
large  districts;  and  it  will  be  necessary  to  note  the  rela- 
tions subsisting  between  military  and  civil  authorities 
while  such  martial  law  was  in  force.  In  peaceful  regions 
of  the  North,  citizens  were  condemned  by  military 
commissions  though  the  courts  were  unobstructed,  and 
issues  were  thus  raised  which  were  more  serious  than 
the  mere  detention  of  political  prisoners  in  military 
custody.  So  grave  were  the  questions  here  involved  that, 
after  the  war,  the  Supreme  Court  declared  illegal  the  use 
of  military  tribunals  for  the  trial  of  citizens  in  districts 
unaffected  by  actual  invasion  and  remote  from  the 
presence  of  armies. 

169 


170  THE  CONSTITUTION  UNDER  LINCOLN 


The  subjection  of  designated  sections  of  the  country 
to  martial  law  depended  upon  local  circumstances,  and 
the  degree  differed  according  to  varying  conditions.  Such 
action  was  at  times  of  minor  importance,  as  for  instance 
when  Round  Valley  in  Central  California  was  placed 
under  martial  law  as  a  protection  to  the  Indians  against 
whom  the  whites  were  committing  outrages.^  In  some 
cases  this  extreme  power  seems  to  have  been  used  in  an 
eccentric  manner,  as  when  General  Thomas  Ewing,  Jr., 
declared  martial  law  at  Leavenworth,  Kansas,  because 
he  "could  not  get  along  with  the  mayor."  ^  That  martial 
law  was  not  always  considered  oppressive  is  shown  by 
the  fact  that  citizens  sometimes  petitioned  for  it.  Some 
Philadelphians,  for  instance,  requested  the  President  to 
declare  martial  law  in  their  city  at  the  time  of  Lee's 
invasion  to  enable  them  to  put  the  city  in  a  proper  state 
of  defense.^  Nor  should  we  suppose  that  the  existence 
of  martial  law  necessarily  involved  a  condition  of  exten- 
sive or  continuous  military  restraint.  Beginning  with 
September,  1863,  the  District  of  Columbia  was  subjected 
to  martial  law,  and  this  state  of  affairs  continued 
throughout  the  war,  but  it  should  not  be  supposed  that 
residents  of  the  capital  city  were  usually  conscious  of 
serious  curtailment  of  their  liberties."*  The  condition  of 
martial  law  was  here  used  as  a  means  of  military  security. 
That  martial  law  should  be  declared  in  areas  of  actual 
military  operations  was,  of  course,  not  remarkable. 
Large  districts  in  Delaware,  Mary^land,  and  Pennsylvania 


"O.  R.,  Ser.  I,  Vol.  50,  pt.  2,  pp.  218.  219,  310. 

*Ibid.,  Ser.  I,  Vol.  22,  pt.  2,  p.  38S. 

*Ibid.,  Ser.  I,  Vol.  27,  pt.  3,  pp.  188,  366. 

*  House  Rep.  No.  262,  Mar.  26,  1874,  43  Cong.,  1  sess.,  p.  6. 


MARTIAL  LAW  171 

were  placed  under  martial  law  because  of  the  actual 
presence  of  Confederate  forces  in  the  summer  of  1863, 
but  this  specific  apphcation  of  military  power  occasioned 
no  serious  complaint.^ 

Where,  however,  a  continuing  condition  of  disloyalty 
or  disturbance  offered  serious  menace  to  the  authorities 
in  their  preserv^ation  of  peace  and  order,  the  use  of  mar- 
tial law  for  long  periods  presented  a  much  graver  situ- 
ation. Such  conditions  existed  in  Missouri  and  in 
Kentucky. 

In  Missouri,  "rebel"  forces  were  very  active  and  the 
extent  to  which  such  forces  were  secretly  assisted  by 
citizens  seemed  to  the  Union  generals  very  alarming. 
Guerrilla  bands  were  reported  to  be  roaming  the  country 
as  bandits,  taking  Union  men  prisoners  and  robbing  them 
of  horses,  wagons,  and  provisions.  A  cautious  policy, 
however,  was  adopted  by  the  Union  authorities.  Fre- 
mont's general  proclamation  of  martial  law  throughout 
the  whole  State  was  overruled,  and  the  Government  con- 
tented itself  with  such  a  declaration  in  St.  Louis  and  in 
the  vicinity  of  railroads  and  telegraph  Hues.® 

More  drastic  action  was  taken  in  Kentucky,  where 
conditions  were  much  the  same  as  in  Missouri.  In  the 
ebb  and  flow  of  important  military  operations,  many 
counties  in  Kentucky  were  alternately  occupied  by  Fed- 
eral and  Confederate  soldiers,  and  were  so  overrun  by 
guerrillas  and  home  guards  that  courts  could  not  be  held 
and  normal  authority  for  the  preservation  of  order  and 
the  protection  of  persons  and  property  could  not  be 
exerted.    The  anomalous  condition  of  the  colored  people 


*0.  R.,  Ser.  I,  Vol.  27,  pt.  3,  pp.  437-438,  504. 

'Concerning  martial  law  in  Missouri,  see  Nicolay  and  Hay,  Works, 
IX,  147-149,  XI,  33;  0.  R.,  Ser.  II,  Vol.  5,  p.  99;  ihid.,  Ser.  I,  Vol.  3,  pp. 
442,  466;  ihid.,  Ser.  II,  Vol.  1,  p.  155;  ihid.,  Ser.  I,  Vol.  8,  pp.  395,  401, 
611,  818. 


172  THE  CONSTITUTION  UNDER  LINCOLN 

was  an  additional  factor  contributing  to  the  general  dis- 
turbance of  social  order.  Recruitment  of  negroes  for  the 
Federal  army  produced  intense  dissatisfaction,  and  the 
operation  of  various  Union  laws  giving  freedom  to  slaves 
in  opposition  to  the  statutes  of  the  State  which  legalized 
slavery  occasioned  widespread  irritation.  The  protection 
of  such  negroes  as  the  Federal  authority  recognized  to 
be  free  seemed  impossible  without  an  extraordinary  use 
of  national  authority. 

This  situation  was  met,  in  the  first  place,  by  the  partial 
application  of  martial  law  in  specified  districts'^  where 
the  disturbance  seemed  most  serious,  and  later  by  a 
proclamation  of  President  Lincoln,  dated  July  5,  1864, 
putting  the  whole  State  under  martial  law.®  On  October 
12,  1865,  the  condition  of  martial  law  in  Kentucky  was 
abolished  by  President  Johnson.^ 

The  instances  we  have  noticed  are  sufficient  to  give  a 
general  notion  of  the  use  of  martial  law  in  States  not  in 
insurrection  during  the  Civil  War.  A  close  study  of 
these  instances  will  reveal  the  fact  that  interference  with 
the  civil  authority  was  reduced  to  the  minimum  even 
during  the  continuance  of  martial  law,  and  that  the 
power  over  citizens  which  was  entrusted  to  the  military 
authorities  was  sparingly  used.  It  was  made  clear  with 
regard  to  Kentucky  that  the  power  under  martial  law 
was  not  to  be  used  to  obstruct  the  proceedings  of  the 
rightful  legislature,  nor  to  impede  the  administration  of 
justice  in  actions  not  connected  with  military  operations. 
A  careful  reading  of  Lincoln's  proclamation  of  July  5, 
1864  (by  which,  as  we  have  seen,  martial  law  in  the 
State  was  instituted)  shows  solicitude  on  the  part  of  the 
President  that  the  ordinary  course  of  justice  be  inter- 

'O.  R.,  Ser.  I,  Vol.  52,  pt.  1  (suppl.),  p.  277. 
*Ihid.,  Ser.  I,  Vol.  39,  pt.  2,  p.  180. 
'Ihid.,  Ser.  Ill,  Vol.  5,  p.  125. 


MARTIAL  LAW  173 

rupted  as  little  as  possible.  Only  acts  demanded  by  the 
military  emergency  were  authorized  by  the  proclama- 
tion, and  the  whole  document  showed  reluctance  to  use 
arbitrary  measures.  The  special  circumstances  requiring 
such  measures  were  recited  as  justification  for  the  proc- 
lamation. For  certain  specified  objects,  martial  law  was 
thought  to  be  needed;  and  beyond  these  specified  and 
limited  objects  the  Government  did  not  intend  to  go. 

This  hmited  use  of  military  power  under  martial  law 
was  illustrated  elsewhere.  When,  for  instance,  General 
Schenck,  immediately  preceding  the  battle  of  Gettys- 
burg, proclaimed  martial  law  in  Baltimore  and  the  major 
part  of  Maryland,  he  assured  the  people  "that  this  sus- 
pension of  the  civil  government  .  .  .  [should]  not  ex- 
tend beyond  the  necessities  of  the  occasion."  He  then 
added:  "All  the  courts  .  .  .  and  political  functionaries 
of  State,  county  and  city  authority  are  to  continue  in 
the  discharge  of  their  duties  as  in  times  of  peace,  only 
in  no  way  interfering  with  the  exercise  of  the  predomi- 
nant power  assumed  ...  by  the  military  authority. 
.  .  .  When  the  occasion  for  this  proclamation  passes  by, 
no  one  will  be  more  rejoiced  than  the  commanding  gen- 
eral that  he  can  revoke  his  order  and  return  to  the 
normal  condition  of  a  country  at  peace."  ^°  As  to  mar- 
tial law  in  St.  Louis,  General  Halleck  made  the  follow- 
ing statement:  "It  is  not  intended  by  this  declaration  to 
interfere  with  the  jurisdiction  of  any  civil  court  which  is 
loyal  to  the  Government  of  the  United  States  and  which 
will  aid  the  military  authorities  in  enforcing  order  and 
punishing  crimes."  ^^ 

These  are  but  typical  declarations  by  military  ofiicers 
illustrating  the  spirit  in  which  military  power  was  ap- 

^"Ibid.,  Ser.  I,  Vol.  27,  pt.  3,  pp.  437-438. 

"Order  of  General  Halleck  at  St.  Louis,  December  26,  1861:     ibid., 
Ser.  II,  Vol.  1,  p.  155. 


174  THE  CONSTITUTION  UNDER  LINCOLN 

plied.  The  question  has  sometimes  been  raised  as  to 
whether  martial  law  and  civil  law  can  coexist.  Without 
entering  into  the  technical  phases  of  this  question,  we 
may  notice  that  in  fact  they  did  coexist  in  various  cases 
during  the  Civil  War.  In  regions  placed  under  martial 
law  a  sort  of  practical  modus  vivendi  was  adopted  under 
which  the  civil  courts  continued  to  function  as  far  as 
possible,  their  province  being  invaded  by  the  military 
only  in  those  instances  in  which,  for  specified  and  lim- 
ited objects,  such  interference  seemed  to  the  commanding 
general  to  be  indispensable.  In  advising  the  generals  as 
to  the  conduct  of  their  duties,  the  authorities  at  Wash- 
ington were  just  as  careful  to  counsel  restraint  as  to  urge 
action. 

n 

We  have  now  to  consider  another  phase  of  extraor- 
dinary executive  authority  applied  during  the  Civil  War 
— the  condemnation  of  citizens  before  military  commis- 
sions. In  a  section  of  enemy  territory  within  military 
occupation,  or  in  a  region  under  martial  law,  the  use  of 
the  military  commission  for  the  trial  of  non-military 
persons  who  have  committed  offenses  of  a  military 
character — such  as  spying  or  bushwhacking — is  proper. 
Where  there  is  no  martial  law,  and  where  the  ordinary 
civil  courts  are  unimpeded,  it  has  been  generally  recog- 
nized that  military  tribunals  have  no  proper  function  to 
perform  in  the  trial  of  civilians,  and  certainly  not  for 
offenses  outside  the  military  code. 

In  explaining  the  use  of  military  commissions  during 
the  Civil  War,  Judge  Advocate  General  Holt  stated  that 
they  originated  in  the  necessities  of  the  rebellion,  and 
were  indispensable  for  the  punishment  of  crimes  in 
regions  where  the  courts  ceased  to  exist  and  in  cases  of 


MARTIAL  LAW  175 

which  the  local  criminal  courts  could  not  take  cogni- 
zance. Such  commissions  were  powerful,  he  said,  be- 
cause unencumbered  by  technicalities  and  because  their 
process  was  executed  by  the  mihtary  power  of  the  United 

States.i2 

Perhaps  the  typical  use  of  military  commissions  at 
the  time  of  the  Civil  War  was  for  the  punishment  of 
offenses  coming  broadly  under  the  military  code  when 
committed  by  civilians  in  regions  hostile  to  the  United 
States.  The  presence  of  Federal  armies  in  Missouri, 
for  example,  while  driving  thousands  into  the  Confed- 
erate ranks,  also  occasioned  many  kinds  of  obstructive 
tactics  and  acts  of  violence  on  the  part  of  those  en- 
emies who  remained  out  of  uniform.  Since  martial 
law  was  in  force  in  Missouri,  especially  along  railroad 
and  telegraph  lines,  we  find  numerous  cases  in  that  State 
where  civilians  were  tried  for  bridge  burning,  destruc- 
tion of  railroad  and  telegraph  lines,  and  the  like.  Where 
civihans  furnished  information  to  the  enemy,  or  engaged 
in  sniping  or  bushwhacking,  they  were  triable  by  mili- 
tary commission  for  violation  of  the  laws  of  war.  The 
vast  majority  of  cases  brought  before  such  commis-^ 
sions  were  of  this  general  sort,  and  have  occasioned 
little  adverse  comment.  The  penalties  were  severe,  but 
no  death  sentence  could  be  enforced  without  reference 
to  the  President,  and  Lincoln's  clemency  saved  many  a 
life.i3 

Widespread  criticism  arose,  however,  where  citizens 
were  subjected  to  military  tribunals  in  regions  remote 
from  militaiy  operations  and  not  under  martial  law.  By 
order  of  August  8,   1862,  United  States  marshals  and 

"Judge  Advocate  General's  report,  in  Report  of  the  Secretary  0} 
War,  1865-1866,  p.  1005. 

"Several  hundred  pages  of  the  Official  Records  are  devoted  to  the 
military  commissions  in  Missouri:     0.  R.,  Ser.  II,  Vol.  1,  pp.  282  et  seq. 


176  THE  CONSTITUTION  UNDER  LINCOLN 

local  magistrates  were  authorized  to  imprison  persons 
who  discouraged  enlistments  or  engaged  in  disloyal  prac- 
tices. Immediate  report  of  such  arrests  was  to  be  made 
to  the  Judge  Advocate  General  so  that  the  prisoners 
could  be  tried  by  military  commission.^*  Generals  in 
command  of  extensive  "departments"  in  the  North  were 
given  authority  to  conduct  such  arrests  and  trials.  We 
have  here  to  deal  with  a  twofold  extension  of  military 
justice  beyond  its  normal  sphere:  the  offenses  were 
beyond  the  military  code;  and  the  trials  were  to  be 
conducted  in  areas  remote  from  military  operations. 


Ill 

The  legality  of  this  broader  use  of  military  commis- 
sions was  threshed  out  in  two  prominent  cases — the  Val- 
landigham  case,  decided  by  the  Supreme  Court  in  Feb- 
ruary, 1864,  and  the  Milligan  case,  decided  in  1866. 
A  comparison  of  these  important  cases  reveals  in  a  strik- 
ing manner  the  effect  of  the  war  upon  judicial  decisions; 
for  the  court  which  upheld  the  authority  of  a  military 
commission  in  1864  declared  such  a  commission  to  be 
illegal  in  an  analogous  case  two  years  later.  In  its 
main  effect,  the  later  decision  was  a  reversal  of  the 
former. 

General  Bumside,  in  command  of  the  "Department 
of  the  Ohio,"  with  headquarters  at  Cincinnati,  issued 
on  April  19,  1863,  an  order  known  as  "General  Order 
No.  38"  declaring  that  persons  committing  acts  for  the 
benefit   of   the  enemy  would  be  executed  as  spies  or 


"Cong.  GlobQ,  37  Cong.,  3  sess.,  p.  1215:  Stanton  Papers,  No.  51811. 
(Stanton  states  that  this  order  was  issued  "by  verbal  direction  of  the 
President.") 


MARTIAL  LAW  177 

traitors.^^  The  order  declared  further  that  "the  habit 
of  declaring  sympathies  for  the  enemy  will  no  longer 
be  tolerated.  .  .  .  Persons  committing  such  offenses 
will  be  at  once  arrested,  with  a  view  to  being  tried 
[as  spies  or  traitors]  or  sent  beyond  our  lines  into  the 
lines  of  their  friends." 

On  May  1,  Clement  L.  Vallandigham,  a  prominent 
anti-war  agitator,  made  a  speech  at  Mt.  Vernon,  Ohio,  for 
which  he  was  arrested  under  this  order.  Burnside  caused 
a  military  commission  to  be  convened,  and  the  prisoner 
was  brought  before  this  court  charged  with  "publicly 
expressing,  in  violation  of  General  Orders,  No.  38  .  .  . 
his  sympathies  for  those  in  arms  against  the  .  .  .  United 
States,  declaring  disloyal  .  .  .  opinions  with  the  object 
...  of  weakening  the  power  of  the  Government  ...  to 
suppress  an  unlawful  rebellion." 

Vallandigham  refused  to  plead,  denying  the  jurisdic- 
tion of  the  court,  but  the  Judge  Advocate  entered  a 
plea  of  "not  guilty."  In  the  trial  Vallandigham  was 
allowed  counsel,  was  permitted  personally  to  cross-ex- 
amine witnesses,  and  was  given  the  advantage  of  com- 
pulsory attendance  of  witnesses  in  his  favor.  At  the 
conclusion  of  the  proceedings  he  read  a  "protest"  declar- 
ing that  he  was  not  triable  by  a  military  commission, 
but  was  entitled  to  all  the  constitutional  guarantees  con- 
cerning due  process  of  arrest,  indictment,  and  jury  trial. 
The  "alleged  'offense,'  "  he  declared,  was  unknown  to  the 
Constitution  and  the  laws. 

"For  proceedings  in  the  Vallandigham  case,  see:  1  Wall.  243;  0.  R., 
Ser.  II,  Vol.  5,  pp.  573  et  seq.;  Ann.  Cyc,  1863,  pp.  473  et  seq.;  Diary 
of  Gideon  Welles,  I,  306,  321 ;  Nicolay  and  Hay,  Lincoln,  VII,  338  et  seq. 
In  the  writer's  investigation,  use  was  made  also  of  the  full  record  and 
arguments  as  found  in  the  unpublished  "Records  and  Briefs  of  the 
United  States  Supreme  Court"  in  the  law  division  of  the  Library  of 
Congress,  and  of  a  useful  paper  prepared  by  C.  M.  Kneier,  of  the 
University  of  Illinois. 


178  THE  CONSTITUTION  UNDER  LINCOLN 

The  commission  found  Vallandigham  guilty  and  he 
was  sentenced  to  close  confinement  during  the  war.  He 
then  applied  to  Judge  Leavitt  of  the  United  States  Cir- 
cuit Court  at  Cincinnati,  for  a  writ  of  habeas  corpus, 
and  thus  the  question  arose  as  to  a  judicial  review  of 
these  military  proceedings. 

The  course  pursued  by  Judge  Leavitt  was  unusual. 
Taking  the  ground  that  he  might  refuse  the  writ  if  satis- 
fied that  the  petitioner  would  not  be  discharged  after 
a  hearing,  he  notified  General  Burnside  of  the  applica- 
tion and  invited  him  to  present  a  statement.  The  usual 
procedure  would  have  been  to  issue  the  writ  as  "of 
right"  and  let  the  General's  statement  appear  in  his  re- 
turn thereto. 

Burnside  justified  his  action  on  the  ground  that  the 
country  was  in  a  ''state  of  civil  war/'  that  in  such  a 
time  great  responsibility  rests  on  public  men  not  to  "use 
license  and  plead  that  they  are  exercising  liberty,"  and 
that  his  duty  required  him  to  stop  intemperate  discus- 
sion which  tended  to  weaken  the  army.  His  statement 
was  a  sort  of  stump  speech  in  justification  of  his  "Gen- 
eral Order  No.  38"  and  his  treatment  of  Vallandigham. 
Judge  Leavitt  refused  the  writ  and  the  case  was  brought 
up  to  the  Supreme  Court  of  the  United  States  on  a 
motion  for  certiorari  to  review  the  sentence  of  the  mili- 
tary commission. 

Vallandigham's  attorney  argued  that  a  militar}^  com- 
mission has  but  a  special  and  limited  jurisdiction  which 
does  not  extend  to  the  trial  of  a  citizen  unconnected 
with  the  land  or  naval  forces.  The  charge  on"  which 
the  prisoner  was  tried  was  unknown  to  the  law,  he  con- 
tended, and  the  sentence  was  in  excess  of  jurisdiction. 
General  Burnside  had  no  authority  to  enlarge  the  ju- 
risdiction of  a  military  commission;  and  as  a  remedy  for 
such  unwarranted  excess  of  authority,  the  Supreme  Court 


MARTIAL  LAW  179 

of  the  United  States  had  the  power  to  issue  a  writ  of 
certiorari. 

Taking  its  opinion  bodily  from  the  argument  of  Judge 
Advocate  General  Holt,  the  Supreme  Court  refused  to 
review  the  proceedings  of  the  military  commission.  In 
stating  the  grounds  of  this  refusal,  the  court  declared 
that  its  authority  was  derived  from  the  Constitution 
and  the  legislation  of  Congi^ess,  its  original  jurisdiction 
being  specified  in  the  Constitution  itself,  and  its  appel- 
late jurisdiction  being  derived  from  the  Judiciary  Act 
of  1789.  A  military  commission,  it  was  said,  is  not  a 
court  within  the  meaning  of  that  act,  and  the  Supreme 
Court  "cannot  .  .  .  originate  a  writ  of  certiorari  to  re- 
view .  .  .  the  proceedings  of  a  military  commission."  ^* 


IV 

Though  from  the  standpoint  of  the  lawyer  there  were 
technical  differences  between  the  Vallandigham  case  and 
the  Milligan  case,  yet  it  would  appear  to  the  layman 

"Lincoln  wrote  to  Bumside:  "All  the  Cabinet  regretted  the  neces- 
sity of  arresting  for  instance  Vallandigham — some  perhaps  doubting 
that  there  was  a  real  necessity  for  it,  but  being  done  all  are  for  seeing 
you  through  with  it."  (0.  R.,  Ser.  II,  Vol.  5,  p.  717.)  The  President 
commuted  Vallandigham's  sentence  from  confinement  during  the  war 
to  removal  within  the  Confederate  lines  and  this  removal  was  ef- 
fected. (Ibid.,  pp.  657,  705-706.)  Certain  citizens  of  Ohio  sent  to  the 
President  a  long  paper  protesting  against  this  banishment.  They  con- 
sidered his  "assumption  of  the  right  to  suspend  all  the  constitutional 
guarantees  of  personal  liberty,  and  even  of  the  freedom  of  speech  and 
of  the  press"  a  "startling"  thing,  and  declared  that  by  such  a  claim  to 
power  the  dominion  of  the  President  would  not  only  be  "absolute 
over  the  rights  of  individuals,  but  equally  so  over  the  other  depart- 
ments of  the  Government."  "Surely  it  is  not  necessary,"  they  added, 
"to  subvert  free  government  in  this  country  in  order  to  put  down  the 
rebellion,  and  it  cannot  be  done  under  the  pretense  of  putting  down 
the  rebellion.  Indeed  it  is  plain  that  your  Administration  has  been 
.  .  .  greatly  weakened  by  the  assumption  of  power  not  delegated  in 
the  Constitution."  (M.  Birchard  and  others  to  the  President,  July  1, 
1863:    i6^.,  Ser.  II,  Vol  6,  pp.  64-68.) 


180  THE  CONSTITUTION  UNDER  LINCOLN 

that  essentially  the  same  question  was  involved — namely, 
the  right  of  civil  courts  to  set  aside  the  sentence  of  a 
military  commission,  and  the  illegality  of  such  a  com- 
mission when  used  for  the  trial  of  citizens  in  a  non-mili- 
tary area.^'^ 

Milligan  had  been  arrested  on  October  5,  1864,  by 
order  of  General  Hovey,  in  command  at  Indianapolis, 
and,  with  certain  associates,  was  brought  before  a  mili- 
tary commission  and  convicted  of  conspiracy  forcibly 
to  release  "rebel"  prisoners  and  to  march  into  Kentucky 
and  Missouri  in  cooperation  with  the  "rebel"  forces  in 
an  expedition  directed  against  the  United  States.  It 
was  shown  that  Milligan  and  his  associates  were  mem- 
bers of  the  disloyal  societies  known  as  the  "Order  of 
the  American  Knights,"  and  the  "Sons  of  Liberty." 

The  military  commission  sentenced  Milligan  to  be 
hanged,  and  the  date  of  the  execution  was  fixed  at  May 
19,  1865.  Milligan  petitioned  the  United  States  Circuit 
Court  for  a  writ  of  habeas  corpus,  and  on  division  of  opin- 
ion the  case  was  brought  up  to  the  Supreme  Court. 
When  the  case  was  decided  by  that  tribunal  the  war 
had  come  to  a  close,  and  the  bearing  of  this  fact  upon 


"The  writer's  sources  and  authorities  for  the  Milligan  case  are:  71 
U.  S.  2  et  seq.;  Hare,  American  Constitutional  Law,  II,  958  et  seq.; 
Records  and  Briefs  of  the  U.  S.  Supreme  Court  (in  the  law  division  of 
the  Library  of  Congress);  MS.  Diary  of  Edward  Bates;  MSS.  in  the 
files  of  the  Attorney  General's  office ;  the  Johnson  Papers  in  the  Library 
of  Congress;  Charles  Warren,  The  Supreme  Court  in  United  States  His- 
tory, III,  140  et  seq.;  Charles  E.  Hughes,  "War  Powers  under  the  Con- 
stitution," Sen.  Ex.  Doc.  No.  105,  65  Cong.,  1  sess.  (Sept.  11,  1917). 
Concerning  this  case,  ex-Attorney  General  Bates  wrote:  "If  the  Su- 
preme Court  should  decide  that  military  commissions  are  lawful,  I 
predict  that  the  judges  who  give  opinion  that  way  will  go  down  to 
posterity  with  characters  as  black  as  that  of  Lord  Chief  Justice 
Saunders,  and  that  their  judgment  will  be  more  odious  to  this  nation 
than  Saunders's  judgment  against  the  chartered  rights  of  the  City  of 
London  ever  was  to  the  English  people."  (MS.  Diary  of  Edward 
Bates,  Feb.  16,  1866.) 


MARTIAL  LAW  181 

the  attitude  of  the  court  appeared  in  Justice  Davis' 
announcement  of  the  court's  opinion,  where  he  said: 

During  the  late  wicked  Rebellion,  the  temper  of  the  times 
did  not  allow  that  calmness  in  deliberation  and  discussion  so 
necessary  to  a  correct  conclusion  of  a  purely  judicial  question. 
Then,  considerations  of  safety  were  mingled  with  the  exercise 
of  power;  and  feelings  .  .  .  prevailed  which  are  happily  ter- 
minated. Now  that  the  public  safety  is  assured,  this  question, 
as  well  as  all  others,  can  be  discussed  and  decided  without 
passion  or  the  admixture  of  any  element  not  required  to  form 
a  legal  judgment. 

On  the  question  wnether  the  Supreme  Court  could 
review  the  action  of  a  military  commission,  the  opin- 
ion was  the  opposite  of  that  announced  in  the  Val- 
landigham  case.  "If  there  was  law  to  justify  this  mili- 
tary trial,"  said  the  court,  *'it  is  not  our  province  to 
interfere;  if  there  was  not  it  is  our  duty  to  declare 
the  nullity  of  the  whole  proceedings."  Reviewing  the 
various  constitutional  safeguards  connected  with  the  ar- 
rest, trial  and  punishment  of  individuals  for  crimes,  the 
court  declared  that  these  guarantees  of  freedom  (which 
are  not  to  be  set  aside  during  war)  had  been  broken. 
''Martial  law,"  it  was  held,  "cannot  arise  from  a  threat- 
ened invasion.  The  necessity  must  be  actual  and  pres- 
ent ;  the  invasion  real,  such  as  effectually  closes  the  courts 
and  deposes  the  civil  administration.  .  .  .  Martial  rule 
can  never  exist  where  the  courts  are  open,  and  in  the 
proper  and  unobstructed  exercise  of  their  jurisdiction. 
It  is  .  .  .  confined  to  the  locality  of  actual  war."  Mil- 
ligan's  trial  and  conviction  by  a  military  commission 
were  therefore  held  to  be  illegal. 

Citing  that  provision  of  the  Habeas  Corpus  Act  of 
March  3,  1863,  which  directed  that  political  prisoners 
not  indicted  by  the  grand  jury  should  be  released,  the 


182  THE  CONSTITUTION  UNDER  LINCOLN 

court  held  that  as  there  was  no  indictment  against 
Milligan,  the  Circuit  Court  must  liberate  him. 

Four  of  the  justices,  including  Chief  Justice  Chase, 
dissented  to  the  Milligan  decision,  but  it  was  a  limited 
dissent.  The  minority  agreed  that  the  military  com- 
mission was  without  jurisdiction  and  that  Milligan 
should  be  discharged.  The  majority,  however,  had  held 
not  only  that  the  commission  was  unauthorized,  but 
that  Congress  had  no  power  to  authorize  it;  and  to  this 
doctrine  the  dissenting  judges  refused  to  subscribe.  The 
Constitution,  they  maintained,  provides  for  military  as 
well  as  civil  government;  and  in  military  trials,  the  safe- 
guards of  the  Fifth  and  other  similar  Amendments  do 
not  apply.  Since  Congress  has  the  power  to  declare  war, 
it  necessarily  has  "many  subordinate  and  auxiliary 
powers,"  and  hence,  said  the  minority,  "Congress  had 
power  ...  to  provide  for  the  organization  of  a  military 
commission,  and  for  trial  by  that  commission  of  per- 
sons engaged  in  this  conspiracy."  The  fact  that  Con- 
gress had  not  authorized  military  commissions  in  Indiana 
caused  the  dissenting  judges  to  regard  the  Milligan  trial 
as  illegal,  though  they  aflSrmed  that  Congress  was  con- 
stitutionally competent  to  create  such  tribunals. 

This  dissent  has  produced  the  impression  of  a  court 
about  to  swing  from  one  opinion  to  another.  As  a  well 
known  commentator  has  said:  "The  question  whether 
the  principle  of  Magna  Carta  as  declared  in  the  Peti- 
tion of  Right,  vindicated  by  the  Declaration  of  Inde- 
pendence, and  guaranteed  by  the  Constitution  .  .  . 
shall  give  place  ...  to  the  methods  which  have  been 
despotically  introduced  [in]  Europe,  arose  in  Ex  parte 
Milligan,  where  the  wavering  balance  fortunately  in- 
clined to  the  side  of  freedom,  although  with  a  tendency 
to  oscillate  which  leaves  the  ultimate  result  in  doubt."  ^^ 

"Hare,  American  Conslitutional  Law,  II,  957-958. 


MARTIAL  LAW  183 

This  wavering  attitude,  it  may  be  added,  is  emphasized 
by  the  fact  that,  as  we  have  seen,  the  Supreme  Court 
dechned  to  interfere  with  a  miUtary  commission  in  the 
Vallandigham  case  while  the  war  was  in  progress,  and 
the  illegality  of  such  commissions  was  declared  only  after 
the  return  of  peace  had  removed  the  occasion  for  them. 


It  may  be  appropriate  to  close  this  chapter  with  cer- 
tain conclusions  or  summarizations  concerning  extraordi- 
nary uses  of  military  authority  during  the  Civil  War: 

1.  The  powers  which  the  executive  assumed  and  the 
prerogatives  which  he  claimed  were  far-reaching.  They 
were  fully  adequate  to  the  establishment  of  a  dictator- 
ship. All  this  was  out  of  keeping  with  the  normal  tenor 
of  American  law. 

2.  Congress  dealt  with  the  problem,  after  much  de- 
lay, by  a  compromise  which  involved  ratification  of  the 
President's  course  but  at  the  same  time  required  prison- 
ers to  be  released  unless  indicted  in  the  regular  courts. 
This  legislation  was  ineffective. 

3.  The  prerogatives  assumed  and  announced  in  proc- 
lamations and  the  like  were  not,  of  course,  always  ex- 
ercised. Much  circumspection  and  leniency  was  mani- 
fested in  the  actual  use  of  extraordinary  powers. 

4.  The  suspension  of  the  habeas  corpus  privilege  did 
not,  of  itself,  institute  martial  law.  The  use  of  this 
dernier  ressort  of  the  executive  power  was  limited;  and 
even  where  martial  law  was  declared  the  normal  course 
of  justice  and  the  functions  of  the  civil  courts  were, 
in  the  main,  uninterrupted. 

5.  While  military  commissions  were  used  for  the  trial 
of  civiUans,  cases  such  as  those  of  Vallandigham  and 
Milligan  were  exceptional.    In  areas  not  under  martial 


184  THE  CONSTITUTION  UNDER  LINCOLN 

law  such  military  commissions  were,  according  to  the 
Supreme  Court,  illegal. 

6.  The  civil  courts  did  very  little  in  suppressing  dan- 
gerous and  treasonable  activities.  District  attorneys 
brought  few  indictments  for  such  crimes  as  conspiracy 
and  treason,  and  the  number  of  cases  of  this  sort  actually 
prosecuted  to  conviction  was  neghgible.  On  the  other 
hand,  disloyalty  was  widespread.  In  view  of  such  exten- 
sive disloyalty,  the  number  of  pohtical  arrests  is  com- 
prehensible.^® 

7.  Summary  process  meant,  as  a  rule,  military  arrest 
and  detention,  not  raiUtary  trial.  Though  justifiable  in 
the  case  of  spies  and  agents  of  the  enemy,  this  detention 
was  indeed  a  hardship  for  many  of  the  prisoners.  To  a 
certain  extent  this  hardship  was  mitigated  by  a  liberal 
policy  regarding  releases. 

8.  Finally,  after  a  close  study  of  the  subject,  the 
author  feels  that  the  arbitrary  arrests  were  unfortunate, 
that  Lincoln's  conception  of  the  executive  power  was  too 
expansive,  and  that  a  clearer  distinction  between  mili- 
tary and  civil  control  would  have  been  desirable.-*'    If, 

"  Concerning  the  extent  and  nature  of  disloyalty  in  the  North,  see 
above,  pp.  82-84. 

"  Lincoln's  reasons  for  the  suspension  of  the  privilege  and  the  arbi- 
trary arrests  were  set  forth  in  his  letter  to  Corning,  June  12,  1863,  which 
is  generally  regarded  as  one  of  his  ablest  papers.  He  urged  that  the 
existing  crisis  was  beyond  the  power  of  the  civil  courts  which  are 
intended  for  the  trial  of  individuals  in  quiet  times;  that  a  "clear, 
flagrant,  and  gigantic  case  of  rebellion"  existed,  for  which  case  the 
suspension  was  constitutionally  authorized;  that  the  purpose  of  sum- 
mary process  was  "preventive"  rather  than  "vindictive";  that  if 
arrests  had  never  been  made  except  for  defined  crimes,  the  constitutional 
provision  would  have  been  useless;  that  Vallandigham's  arrest  was 
not  for  political  purposes  but  because  of  damage  to  the  army;  and 
that  the  Constitution  itself  makes  the  distinction  between  measures 
authorized  for  normal  times  and  those  permissible  in  time  of  rebellion 
or  invasion.  Jackson's  use  of  martial  law  was  cited  approvingly,  and  it 
was  shown  that  normal  safeguards  of  liberty  were  not  injured  by  this 
extraordinary  use  of  military  authority  in  a  crisis.  (Nicolay  and  Hay, 
Works,  VIII,  298  et  seq.) 


MARTIAL  LAW  185 

however,  the  Government  under  Lincoln  erred  in  these 
respects,  it  erred  under  great  provocation  with  the  best 
of  motives;  and  its  policy  may  not  be  justly  criticized 
without  a  full  understanding  of  the  alarming  situation 
which  confronted  the  nation. ^^ 

''Lincoln's  reluctance  to  depart  from  established  American  princi- 
ples; his  sympathy  for  the  conscientious  objector;  his  generosity  in  re- 
leasing political  prisoners,  whom  he  refused  to  treat  as  war  criminals; 
and  his  claim  to  the  title  of  the  "Great  Conciliator"  as  denoting  his  real 
place  in  history  more  truly  than  that  of  the  "Great  Emancipator,"  were 
effectively  set  forth  in  a  paper  entitled  "Abraham  Lincoln  and  the 
Tradition  of  American  Civil  Liberty,"  read  by  Professor  Arthur  C.  Cole 
before  the  Illinois  State  Historical  Society  at  Springfield,  Illinois,  May 
7,  1926. 


CHAPTER  IX 

THE   INDEMNITY   ACT   OF    1863 

I.   Problem  of  the  liability  of  Federal  officers  for  wrongs 
committed  in  their  official  capacity  during  the  Civil 
War 
II.   Passage  of  the  Indemnity  Act  to  relieve  oflBcers  of  such 
liability 

III.  Suits  against  Federal  officers:  State  resistance  to  the 

Indemnity  Act 

IV.  Legal  difficulties  presented  in  the  courts  in  the  prac- 

tical application  of  the  act 
V.    Constitutionality  of  the  measure  considered:  Decision 
of   the   Supreme   Court   holding   the   act   to   be  in 
violation  of  the  Seventh  Amendment 


Our  attention  has  been  called  in  preceding  chapters 
to  summary  arrests  and  other  arbitrary  acts  consequent 
upon  the  suspension  of  the  habeas  corpus  privilege.  The 
essential  irregularity  of  such  a  situation  in  American  law 
becomes  especially  conspicuous  when  one  considers  its 
inevitable  sequel — namely,  the  protection  of  military 
and  civil  officers  from  such  prosecution  as  would  nor- 
mally follow  invasion  of  private  rights  and  actual  injury 
of  persons  and  property.  Such  protection  was  afforded 
by  a  bill  of  indemnity  passed  in  1863;  and  this  law,  with 
its  amendment  of  1866,  forms  a  significant  chapter  in 
our  legal  history. 

By  the  ordinary  application  of  the  principles  of 
American  administrative  law,  officers  guilty  of  trespasses 

186 


THE  INDEMNITY  ACT  OF  1863  187 

(such  as  false  imprisonment  and  unwarranted  seizures) 
would  stand  unprotected,  though  the  trespass  might  be 
in  strict  keeping  with  executive  orders.  It  is  a  well- 
known  principle  of  our  law  that  governmental  officers 
(with  the  possible  exception  of  judges  who  are  remov- 
able by  impeachment  but  otherwise  independent)  are 
liable  in  damages  for  official  conduct  which  results  in 
private  injuries,  and  are  subject  to  prosecution  in  case 
such  conduct  bears  a  criminal  character.^  Under  Ameri- 
can and  other  Anglo-Saxon  jurisdictions  any  governmen- 
tal officer  who  injures  private  rights,  either  by  omission 
or  commission,  is,  with  but  few  qualifications,  subject  to 
civil  or  criminal  action  precisely  as  an  ordinary  citizen 
would  be.-  This  liability  of  governmental  agents  is  but 
one  phase  of  the  Anglo-Saxon  principle  that  governments 
are  not  above  law,  and  that  an  officer  of  the  government 
is  not  given  a  privileged  character  superior  to  that  of  the 
common  man.  All  this  would  mean  that,  unless  some 
special  protection  were  provided  for  cases  arising  during 
the  war,  many  officers  would  be  sued  or  prosecuted  for 
acts  which  in  the  large  sense  were  not  theirs  at  all,  but 
those  of  the  government. 

S  "Every  ofl&cer,  from  the  highest  to  the  lowest,  in  our  government,  i3 
amenable  to  the  laws  for  an  injury  done  to  individuals.  ...  It  is  a 
fundamental  principle  in  our  government  that  no  individual,  whether 
in  or  out  of  office,  is  above  the  law.  .  .  .  There  are  three  grounds  on 
which  a  public  officer  may  be  held  responsible  to  an  injured  party. 
(1)  Where  he  refuses  to  do  a  ministerial  act  over  which  he  can  exer- 
cise no  discretion.  (2)  Where  he  does  an  act  which  is  clearly  not 
within  his  jurisdiction.  (3)  Where  he  acts  willfully,  maliciously  and 
unjustly  .  .  .  within  his  jurisdiction."  (U.  S.  Supreme  Court  in  Ken- 
dall vs.  Stokes  et  al,  44  U.  S.  792,  794.) 

*For  an  instance  in  which  the  President  himself  was  subjected  to  an 
action  for  damages,  one  may  turn  to  the  case  of  Livingston  vs.  Jefferson. 
In  1811  an  action  for  trespass  was  brought  before  the  Circuit  Court  of 
Virginia  against  "Thomas  Jefferson,  a  citizen  of  Virginia."  The  fact 
that  Jefferson  had  been  President  was  not  considered  a  bar  to  the 
suit  (which  pertained  to  an  official  act  while  in  the  Presidency),  though 
on  other  grounds  the  court  declined  to  take  jurisdiction.  (Fed.  Cas. 
No.  8411;  Beveridge,  Life  of  John  Marshall,  IV,  102.) 


188  THE  CONSTITUTION  UNDER  LINCOLN 

For  these  reasons  it  has  long  been  customary  in  Eng- 
land to  follow  up  a  proclamation  of  martial  law,  or  a 
suspension  of  the  habeas  corpus  privilege,,  with  a  retro- 
active statute  of  indemnity  affording  judicial  protection 
to  those  agents  of  the  Government  who,  though  acting  in 
good  faith,  have  been  guilty  of  breaches  of  private 
rights.  Following  the  suspension  of  the  Habeas  Corpus 
Act  in  1793,  Parliament  passed  in  1801  an  act  indemni- 
fying and  shielding  all  who  had  made  summary  arrests 
for  treason,  and  relieving  them  of  the  responsibility  that 
would  usually  have  followed  such  arrests.^  Another  bill 
of  indemnity  was  passed  in  1817  to  protect  officers  who 
had  arrested  on  suspicion,  and  who  had  made  seizures 
without  legal  process. 

Before  the  war  had  proceeded  far  in  the  United  States 
it  became  evident  that  Federal  officers,  even  of  Cabinet 
rank,  were  being  attacked  in  State  courts  for  acts  done 
in  the  performance  of  duty.  One  of  the  earliest  cases 
of  this  sort  was  that  of  Pierce  Butler  of  Philadelphia 
against  Simon  Cameron,  Secretary  of  War.  Butler  was 
arrested  by  order  of  Cameron  in  August,  1861,  on  sus- 
picion of  having  received  a  commission  from  the  Con- 
federacy, and  was  confined  for  about  a  month  in  Fort 
Lafayette,  after  which  he  was  released  by  order  of  Secre- 
tary Seward  on  giving  pledge  of  loyalty.  On  Butler's 
petition  the  Supreme  Court  of  Pennsylvania  issued  a 
writ  which  was  served  upon  Cameron  when  he  was  about 
to  sail  as  minister  to  Russia,  the  charge  being  assault  and 
battery  and  false  imprisonment.  The  official  concern 
occasioned  by  this  suit  may  be  judged  by  the  fact  that 
the  President  adopted  the  act  of  the  Secretary  of  War 

'These  English  bills  of  indemnity  offered  protection  only  for  bona 
fide  acts,  done  of  necessity,  and  not  for  excesses  of  authority.  In  re 
the  petition  of  D.  F.  Marais:  Edinburgh  Review,  Vol.  195,  pp.  79  et 
acq.  (esp.  p.  90) ;  May,  Constitutional  History  oj  England,  II,  256-258. 


THE  INDEMNITY  ACT  OF  1863  189 

as  his  own,  and  directed  that  the  suit  should  "be  fully 
defended  as  a  matter  which  deeply  Concerns  the  public 
welfare  as  well  as  the  safety  of  the  individual  ofl&cers  of 
the  Government."  To  this  end  the  Federal  district  attor- 
ney at  Philadelphia  was  instructed  to  give  particular 
attention  to  the  defense  of  Cameron.  As  a  result,  the 
case  was  dropped  in  its  preliminary  stages.^ 

In  1863  Secretary  Seward  was  subjected  to  a  similar 
action  for  false  imprisonment  in  a  New  York  court  by 
G.  W.  Jones,  former  minister  to  Bogota,  who  was  arrested 
in  a  New  York  hotel  and  kept  prisoner  in  Fort  Lafayette 
for  four  months.^  The  effort  of  Governor  Seymour  and 
the  judicial  authorities  of  New  York  to  prosecute  Gen- 
eral Dix  for  his  suppression  of  the  New  York  World  is 
an  example  of  the  same  disposition  on  the  part  of  local 
courts  to  enforce  judicial  remedies  at  the  expense  of 
highly  placed  officials.^  Secretary  Stanton  is  said  to  have 
remarked  that  if  such  prosecutions  held,  he  would  be 
imprisoned  a  thousand  years,  at  least. ^  These  instances 
will  suffice  to  show  that  the  need  of  protection  for 
Federal  officers  was  real. 

II 

To  supply  such  protection  was  the  purpose  of  the  act 
of  March  3,  1863,  which  was  at  once  a  bill  of  indemnity 
and  an  authorization  to  suspend  the  habeas  corpus  privi- 
lege,*   It  is  only  the  fourth  and  subsequent  sections  that 

*0.  R.,  Ser.  II,  Vol.  2,  pp.  507-508;  Ann.  Cyc,  1862,  pp.  511-512. 

'40  Barbour  563;  41  Barbour  269;  3  Grant  431. 

""  Infra,  pp.  496-499. 

'Diary  oj  Gideon  Welles,  II,  206. 

*  In  using  the  name  "Indemnity  Act"  to  designate  the  law  of 
March  3,  1863,  contemporary  usage  has  been  followed.  Senator  Trum- 
bull and  others  referred  to  the  measure  while  under  debate  as  the 
"Indemnity  Bill,"  and  the  same  designation  appeared  in  the  headings 
of  the  record,  as  well  as  in  many  other  places.  {Cong.  Globe,  2>7 
Cong.,  3  sess.,  pp.  1459,  1479.) 


190   THE  CONSTITUTION  UNDER  LINCOLN 

carry  the  indemnifying  feature.  The  circumstances  of 
the  passage  of  this  act  were  extraordinary.  It  was  con- 
sidered during  the  last  hours  of  a  crowded  session,  amid 
a  hectic  atmosphere.  Its  opponents  claimed  that  it  was 
railroaded  through;  that  various  attempts  to  lay  it  on 
the  table  or  delay  its  passage  were  roughly  overridden; 
"that  it  was  passed  within  an  hour  of  its  first  introduc- 
tion without  having  been  printed,  without  reference  to 
any  committee,  and  without  opportunity  for  considera- 
tion or  discussion."  It  is  true  that  at  first  there  was 
practically  no  debate  in  the  lower  house,  and  that  the 
measure  was  rushed  to  its  passage  within  an  hour.  But 
later  the  question  was  reopened  by  a  Senate  amendment, 
whereupon  a  long  and  animated  debate  followed.  This 
discussion,  however,  shot  wide  of  the  mark,  and  was 
hardly  more  than  a  general  debate  on  the  war  and  on 
party  policy. 

In  each  chamber  there  was  a  lively  filibuster  against 
the  measure.  In  the  House  it  took  the  form  of  con- 
tinuous excuses  for  absence  in  the  case  of  various  mem- 
bers on  the  ground  of  "sickness,"  being  "unwell,"  being 
"indisposed"  and  the  like.  Mr.  Colfax  of  Indiana  rose 
to  a  question  of  order  and  his  point  was  objected  to 
because  it  had  been  decided  that  he  was  absent!  To 
judge  by  the  record  the  House  was  in  great  hilarity  when 
these  proceedings  were  in  progress,  and  the  sergeant-at- 
arms  was  appealed  to  in  playful  mood  at  various  points; 
but  at  the  same  time  it  was  evident  that  a  real  contest 
was  on  and  that  the  supporters  of  the  bill  were  displeased 
at  the  filibustering  tactics  of  the  opposition.^ 

In  the  Senate  a  truly  remarkable  struggle  was  enacted. 
A  vigorous  minority  was  working  desperately  to  post- 

•The  filibuster  in  the  lower  house  appears  in  Cong.  Globe,  37 
Cong.,  3  sess.,  pp.  1357  et  seq.  The  bill  passed  the  House  March  2, 
the  vote  being  99  to  44 :    ibid.,  p.  1479. 


THE  INDEMNITY  ACT  OF  1863  191 

pone  the  measure  and  prevent  a  vote,  while  Senator 
Trumbull  and  other  leaders  were  equally  determined  to 
put  the  measure  through  before  the  session  should  close. 
It  was  agreed  that  the  conference  report  on  the  bill,  har- 
monizing the  differences  between  the  House  and  the 
Senate,  should  be  taken  up  at  seven  o'clock  of  the  same 
day  that  the  first  printed  copies  of  the  report  were  dis- 
tributed. The  parliamentary  encounter  (which  could 
not  be  deemed  a  discussion)  proceeded  throughout  the 
night  and  early  morning  of  March  2-3,  Senators  Powell, 
Bayard  and  others  holding  the  floor  with  endless 
speeches  in  which  Magna  Carta,  Shakespeare,  Cowper, 
Moliere,  Marshall,  Webster,  and  other  authorities  and 
poets  were  quoted;  while  the  friends  of  the  bill  used  all 
their  powers  to  keep  a  quorum,  prevent  adjournment, 
and  acquire  the  floor  for  a  motion  to  concur  in  the  con- 
ference report.  During  this  "debate"  the  yeas  and  nays 
on  adjournment  were  taken  five  times. 

Finally,  at  about  five  o'clock  in  the  morning,  the  pre- 
siding officer  unexpectedly  put  a  viva  voce  vote,  an- 
nounced that  the  bill  was  passed,  denied  the  floor  to 
opposing  Senators  who  insisted  that  the  measure  had 
not  passed,  refused  to  entertain  a  motion  to  reconsider, 
and,  against  the  protest  of  the  filibusterers,  declared  the 
Senate  adjourned.^*' 

The  measure  so  passed  was  not  designed,  as  Stevens 
explained,  to  indemnify  everybody  who,  at  the  time  of 
the  suspension  of  constitutional  guarantees,  had  com- 
mitted trespasses  in  the  name  of  the  Government;  but 
it  "indemnified  the  President,  Cabinet,  and  all  who  in 
pursuance  of  their  authority  [had]  made  arrests  during 
the  period  of  the  suspension."  ^^  The  fourth  section  of 
the  act  reads  as  follows: 

^"Cong.  Globe,  37  Cong.,  3  sess.,  p.  1477. 
"^Ibid.,  p.  22. 


192  THE  CONSTITUTION  UNDER  LINCOLN 

Any  order  of  the  President,  or  under  his  authority,  made  at 
any  time  during  the  .  .  .  present  rebellion  shall  be  a  defense 
in  all  courts  to  any  action  or  prosecution,  civil  or  criminal, 
pending  or  to  be  commenced,  for  any  search,  seizure,  arrest,  or 
imprisonment  .  .  .  imder  and  by  virtue  of  such  order,  or  un- 
der color  of  any  law  of  Congress,  and  such  defense  may  be 
made  by  special  plea,  or  under  the  general  issue,^' 

In  the  remaining  sections  provision  is  made  for  the 
removal  of  suits  of  this  nature  from  State  to  Federal 
courts  (except  where  judgment  is  in  favor  of  the  de- 
fendant) and  for  imposing  a  two-year  limitation  after 
which  no  such  prosecution  or  litigation  could  be  begun. ^* 

It  is  significant  that  Stevens,  the  author  of  the  indem- 
nifying feature  of  the  House  bill,  was  not  one  of  those 
who  held,  with  the  Attorney  General,  that  the  President 
had  the  right  to  suspend  habeas  corpus  privilege.  Some 
who  concurred  in  the  Attorney  General's  opinion  that 
the  President  had  the  full  power  to  suspend,^*  and  to 
delegate  such  authority  to  subordinates,  argued  that  no 
wrongs  had  been  committed,  and  that  no  indemnification 
was  necessary.  Conversely,  the  very  basis  of  the  bill  of 
indemnity,  in  the  minds  of  many  who  voted  for  it,  was 
an  assumption  that  the  President  did  not  constitution- 
ally have  this  power,  or  at  least  a  doubt  as  to  the  legality 

"  U.  S.  Stat,  at  Large,  XII,  756.  This  section  is  taken  from  the 
Senate  bill  which  dififered  materially  from  that  of  the  lower  house  in 
its  mode  of  protecting  Federal  officers.  In  the  House  bill  all  pro- 
ceedings against  officers  were  declared  null  and  void,  while  in  the 
Senate  substitute,  the  orders  of  the  President,  or  under  his  authority, 
were  declared  to  be  a  defense  in  such  proceedings.  As  Senator  Trum- 
bull explained:  "We  do  not  propose  to  say  that  a  suit  shall  be  dis- 
missed, that  a  proceeding  is  null  and  void,  but  we  propose  that  cer- 
tain facts  shall  be  a  defense  to  an  action."  (Cong.  Globe,  37  Cong., 
3  sess.,  p.  1436.) 

"The  first  three  sections  (which  have  been  discussed  elsewhere)  have 
to  do  with  the  suspension  of  the  habeas  corpus  privilege  and  the  dis- 
charge of  political  prisoners  against  whom  indictments  were  not  lodged. 

"O.  R.,  Ser.  II,  Vol.  2,  pp.  20-30  (July  5,  1861). 


THE  INDEMNITY  ACT  OF  1863  193 

of  this  presidential  suspension  and  a  desire  to  clear  up 
the  matter  once  for  all. 

The  act  was  vigorously  denounced  in  a  protest  signed 
by  thirty-seven  Representatives,  including  Vorhees,  Val- 
landigham,  and  other  anti-administration  leaders.  These 
men  pointed  out  that  the  acts  over  which  the  bill  cast 
protection  were  iUegal  trespasses  against  which  redress 
might  admittedly  be  had  under  the  ordinary  administra- 
tion of  the  law;  that  the  distinction  was  not  made  be- 
tween the  zealous  officer  and  the  miscreant;  that  all 
offenses  were  condoned  and  all  redress  for  injuries  taken 
away,  and  that  the  measure  would  encourage  lawless 
violence.  ^^ 

III 

When  the  Indemnity  Act  came  to  be  applied  in  the 
courts,  various  defects  in  the  measure  came  to  light,  and 
in  many  quarters  serious  difficulties  arose  because  of 
intense  opposition  to  the  act  on  the  part  of  the  State 
courts.  As  military  pressure  was  lifted  at  the  close  of 
the  war,  thousands  of  suits  against  Union  officers  were 
brought  in  State  tribunals  in  defiance  of  the  act.^®  In 
Kentucky,  particularly,  as  the  Federal  troops  withdrew 
and  Confederate  soldiers  returned,  an  intense  feeling  de- 
veloped between  the  Union  and  anti-Union  elements. 
The  latter  soon  gained  ascendancy  and  as  a  result  there 
were  as  many  as  three  thousand  suits  pending  against 


^^Cong.  Globe,  37  Cong.,  3  sess.,  p.  165. 

"The  fact  that  there  should  be,  during  and  after  the  war,  proceed- 
ings in  the  ordinary  courts  against  United  States  officers  for  tres- 
pass on  account  of  acts  done  in  their  official  capacity  is  eloquent  proof 
of  the  lack  of  congeniality  between  summary  methods  and  the  Ameri- 
can legal  genius.  Had  such  methods  been  congenial  to  the  American 
mind,  a  definite  system  would  long  ago  have  been  evolved  to  take 
care  of  such  cases. 


194  THE  CONSTITUTION  UNDER  LINCOLN 

Union  ofl&cers  by  September,  1865.^^  Very  high  dam- 
ages were  claimed  in  these  suits,  and  numerous  criminal 
actions  were  instituted,  so  that  men  who  acted  to  uphold 
the  Government  were  in  many  instances  facing  complete 
ruin.  This,  of  course,  was  the  very  thing  which  the 
Indemnity  Act  sought  to  prevent. 

It  was  alleged  that  these  Kentucky  cases  grew  out  of 
a  disposition  to  use  the  courts  as  instruments  for  the 
prosecution  of  Union  officials  in  the  interest  of  outraged 
secessionists.  Confederates  were  permitted  to  plead  su- 
perior orders  as  defense,  while  such  pleas  were  denied  to 
Union  men.  The  people  were  instructed  by  the  leaders 
that  the  filing  of  such  suits  was  a  patriotic  duty,  and 
were  urged  to  bring  as  many  of  them  as  possible.^' 

Many  of  these  suits,  in  Kentucky  and  elsewhere,  were 
civil  actions  to  recover  damages  for  false  imprisonment. 
A  citizen  of  Boston,  for  instance,  having  been  arrested 
and  confined  at  Fort  Lafayette  for  eight  days,  brought 
suit  against  the  United  States  marshal  making  the 
arrest.^^  A  Confederate  sympathizer  in  California  who 
had  used  grossly  abusive  language  regarding  President 
Lincoln  and  had  expressed  approval  of  his  assassination, 
and  who,  in  consequence,  was  confined  for  six  days  at 
Fort  Alcatraz,  sued  General  McDowell,  Commander  of 
the  Department  of  the  Pacific,  on  the  ground  of  false 
imprisonment.-^  In  far  away  Vermont  a  man  of  sup- 
posed disloyal  tendencies,  who  had  been  an^ested  with- 

"Cong.  Globe,  39  Cong.,  1  sess.,  pp.  1983,  2021,  2054,  2065;  Frank- 
fort (Ky.)  Commonwealth,  Oct.  24  and  Oct.  27,  1865. 

"  Cong.  Globe,  39  Cong.,  1  sess.,  pp.  1425,  1526,  1527.  The  files  of  the 
Frankfort  (Ky.)  Commonwealth,  1865-66,  contain  many  references  to 
suits  against  Union  officers,  and  the  editorial  comment  is  in  strong 
disapprobation  of  such  suits. 

"Sturtevant  vs.  Allen,  in  Sup.  Ct.  of  Mass.  See  Chicago  Tribune, 
Dec.  18,  1865,  p.  1. 

"McCall  t',9.  McDowell  et  al.  Cir.  Ct.  of  Cal.,  Apr.  25,  1867.  Fed. 
Gas.  No.  8673. 


THE  INDEMNITY  ACT  OF  1863  195 

out  sworn  indictment  or  warrant  and  kept  in  prison 
seven  months  on  the  charge  of  enticing  soldiers  to  desert, 
brought  an  action  for  damages  against  the  United  States 
provost  marshal  making  the  arrest.-^  In  such  actions 
juries  would  fix  the  damages,  though,  of  course,  for  errors 
of  law  the  verdicts  could  be  set  aside. 

In  addition  to  these  civil  actions,  a  number  of  criminal 
indictments  were  brought  by  grand  juries  against  Union 
officers  and  often  prosecuted  to  conviction  in  entire  dis- 
regard of  the  protection  and  the  Federal  jurisdiction  pro- 
vided by  the  Indemnity  Act.  Such,  for  the  most  part, 
were  the  Kentucky  cases,  which  attracted  diief  attention 
at  this  time.  A  Federal  officer  in  that  State  who  pressed 
horses  into  service  in  pursuit  of  a  guerrilla  band,  was 
indicted  for  horse  steahng;  --  while  the  taking  of  horses 
for  the  public  use  in  the  Confederate  Army,  "however 
wrongful  in  fact,"  was  declared  excusable  as  a  lawful 
exercise  of  belligerent  right. ^^  Officers  who  under  Fed- 
eral military  authority  gave  passes  to  negroes  were  in- 
dicted for  assisting  the  escape  of  slaves.^^  For  firing  on 
guerrillas  under  arrest  in  order  to  prevent  their  escape, 
a  provost  marshal's  force  was  indicted  for  murder.-^ 
Election  troubles  intensified  the  bitterness,  and  a  number 
of  Union  officers  were  fined  four  thousand  dollars  apiece 

'ZBean  vs.  Beckwith,  18  Wall.  510. 

"Frankfort  (Ky.)  Commonwealth,  Oct.  27,  1865. 

"The  case  was  a  seizure  by  one  of  Morgan's  men:  Price  vs.  Poyn- 
ter,  1  Bush  387.    See  also  Commonwealth  vs.  Holland,  1  Duvall  182. 

"2  Bush  570. 

"Statement  of  Representative  McKee  of  Kentucky:  Cong.  Globe, 
39  Cong.,  1  sess.,  p.  1526.  In  a  similar  case  a  Union  soldier,  whose 
company  had  been  ordered  to  exterminate  all  bushwhackers,  killed  an 
escaping  bushwhacker,  who  had  been  a  Confederate  captain.  He  was 
convicted  for  murder  in  a  Tennessee  court  and  imprfsoned  on  a  fifteen 
year  sentence  in  the  State  penitentiary.  On  a  habeas  corpus  petition 
to  the  Federal  district  court  it  was  held  that  the  killing  was  not  cog- 
nizable by  the  State  court,  and  a  release  was  ordered.  {In  re  Hurst, 
U.  S.  Dist.  Ct.,  M.  D.  Tenn.,  1879:    Fed.  Cas.  No.  6926.) 


196  THE  CONSTITUTION  UNDER  LINCOLN 

for  executing  a  military  order  which  required  certain 
men  to  be  kept  away  from  the  polls.  In  one  county,  as 
reported  by  Representative  Smith  in  Congress,  "the 
grand  jury  indicted  every  Union  judge,  sheriff,  and  clerk 
of  election,  though  not  a  single  indictment  was  made  on 
the  basis  of  evidence  brought  in  by  Union  men."  ^^  As 
a  result  of  these  election  difficulties.  Governor  Bramlette 
himself,  a  man  of  Union  sympathies,  was  placed  under 
indictment,-^  and  several  prosecutions  were  directed 
against  General  Palmer,  the  Federal  commander  at 
Louisville.-^ 

Officers  who  were  convicted  in  such  cases  were  sub- 
jected to  heavy  fines  and  in  many  instances  they  were 
placed  in  the  penitentiary.  If  they  pleaded  the  Indem- 
nity Act  as  a  defense  and  pointed  to  their  official  capacity 
as  agents  of  the  Federal  Government,  they  were  met  with 
the  answer  that  the  act  was  unconstitutional  (as  many 
judges,  of  course,  sincerely  believed),  and  that,  no  matter 
who  issued  the  order,  even  the  President,  no  legal  protec- 
tion was  afforded.  If  they  then  sought  a  transfer  to 
Federal  jurisdiction,  this  was  denied  on  the  ground  that 

**  Representative  Smith  of  Kentucky,  in  Cong.  Globe,  39  Cong.,  1 
sess.,  p.  1527. 

*' Frankfort  (Ky.)   Commontvcalth,  Sept.  19,  1865. 

"Criminal  indictments  were  brought  against  General  Palmer  for 
aiding  the  escape  of  slaves  (by  giving  passes  to  negroes)  this  being  a 
felony  under  Kentucky  law.  In  addition,  suits  for  damages  were 
lodged  against  him  by  private  parties  seeking  to  recover  the  value  of 
slaves  who  had  escaped.  In  Commonwealth  vs.  John  M.  Palmer  (2 
Bush  570)  the  highest  Kentucky  court  held  that  the  Federal  Govern- 
ment had  no  constitutional  power  to  abolish  slavery  in  Kentucky  and 
that  General  Palmer  could  not  protect  himself  by  pleading  an  order 
of  the  Secretary  of  War.  After  the  adoption  of  the  Thirteenth  Amend- 
ment, however,  the  indictment  in  this  case  was  quashed.  In  his 
memoirs  Palmer  mentions  a  number  of  suits  and  prosecutions  against 
him,  which  were  defended  without  expense  to  the  Government,  the 
costs  being  paid  from  the  General's  pocket.  He  adds,  however,  that 
the  Government  later  took  charge  of  the  suits  and  indemnified  him 
for  the  costs.     (Personal  Memoirs  oj  J.  M.  Palmer,  264-266.) 


THE  INDEMNITY  ACT  OF  1863  197 

no  Federal  question  was  involved.  Thus  deprived  of 
judicial  protection,  former  Federal  officers  sought  mili- 
tary aid ;  and  orders  were  accordingly  issued  to  the  vari- 
ous division  and  department  commanders  to  use  troops 
if  necessary  in  order  to  protect  those  who  had  been  in 
the  military  service  of  the  United  States  "from  illegal 
arrest  and  imprisonment."  ^^ 

To  back  up  the  State  courts  and  to  promote  these 
suits  and  prosecutions  against  Unionists,  a  particularly 
defiant  act  was  passed  by  the  Kentucky  legislature.  By 
the  terms  of  this  measure,  enacted  February  5,  1866,  to 
take  effect  at  once,  it  was  made  unlawful  "for  any  judi- 
cial officer  in  this  Commonwealth  to  dismiss  any  civil 
action  .  .  .  for  the  reason  that  the  alleged  wrongs  or 
injuries  were  committed  during  the  existence  of  martial 
law  or  the  suspension  of  the  writ  of  habeas  corpus."  ^^ 
In  a  later  statute  it  was  provided  that  an  appeal  might 
be  taken  from  the  decision  of  any  court  which  authorized 
the  transfer  of  a  case  from  a  State  to  a  Federal  tribunal.^^ 
The  plain  intention  of  this  law,  as  its  opponents  charged, 
was  to  override  the  jurisdiction  of  the  courts  of  the 
United  States  by  means  of  a  State  legislative  enactment. 

It  will  thus  be  seen  that  the  Indemnity  Act  was  failing 


""In  consequence  of  the  many  and  repeated  applications  made  to 
these  headquarters  for  protection  against  unjust  and  illegal  arrest 
and  imprisonment  of  citizens  .  .  .  who  have  been  in  the  military  service 
of  the  United  States  .  .  .  Department  and  District  commanders  will 
most  strictly  prohibit  and  prevent  all  such  action  on  the  part  of  the 
civil  authority."  (Command  of  Maj.  Gen.  Thomas,  Hdqrs.  Mil.  Div. 
of  Tenn.,  to  Gen.  J.  M.  Palmer,  Louisville:  Frankfort  (Ky.)  Com- 
monwealth, Oct.  3,  1865.) 

"  Laws  of  Ky.,  1866,  Ch.  372. 

^2  "Either  party  to  any  suit  in  any  court  of  this  Commonwealth  .  .  . 
shall  have  the  right  of  appeal  .  .  .  from  the  order  of  any  such  court 
transferring  ...  a  cause  to  any  court  of  the  United  States,  or  stay- 
ing proceedings  .  .  .  with  a  view  of  transferring  a  cause  to  any  court 
of  the  United  States."  (Approved  Feb.  16,  1866:  Laws  of  Ky.,  1866, 
Ch.  690.) 


198  THE  CONSTITUTION  UNDER  LINCOLN 

of  its  purpose,  and  that  the  protection  which  it  sought 
to  apply  by  judicial  process  was  proving  inadequate. 
The  problem  of  making  the  act  really  effective  was  in 
part,  of  course,  merely  a  matter  of  asserting  Federal 
authority  where  it  was  being  defied;  but  in  addition,  a 
strengthening  of  the  statute  itself  was  necessar}^,  and  for 
this  reason  the  act  was  substantially  amended  by  Con- 
gress in  1866.  Under  the  original  law,  as  interpreted  by 
the  State  courts,  an  order  of  the  President  himself  had 
to  be  produced  in  court  in  order  to  make  available  the 
benefits  of  the  act  as  a  defense.  This  was  a  serious  limi- 
tation, for  many  of  the  acts  complained  of  had  been  com- 
mitted on  the  authority  of  department  commanders,  pro- 
vost marshals,  and  other  subordinate  oflficials.  In  the 
amendment  it  was  therefore  provided: 

That  any  search,  seizure,  arrest  or  imprisonment  made,  .  .  . 
by  any  officer  or  person  ...  by  virtue  of  any  order,  written 
or  verbal,  general  or  special,  issued  by  the  President  or  Secre- 
tary of  War,  or  by  any  military  officer  of  the  United  States 
holding  .  .  .  command  of  the  .  .  .  phice  within  which  such 
seizure  ...  or  imprisonment  was  made,  .  .  .  either  by  the 
person  or  officer  to  whom  the  order  was  addressed  ...  or  by 
any  other  person  aiding  or  assisting  him  therein,  shall  be  held 
...  to  come  within  the  purview  of  the  [Indemnity  Act]  .  .  . 
for  all  the  purposes  of  defense,  transfer,  appeal,  error,  or 
limitation  provided  therein.  [In  case  the  original  order  or 
telegram  could  not  be  produced,  then  "secondary  evidence" 
was  made  admissible.]  ^" 

This  sweeping  provision  would  correct  one  of  the 
defects  of  the  measure  by  covering  cases  where  authority 
for  the  act  in  question  might  not  be  traceable  directly 
to  the  President,  and  would  even  apply  to  indirect  or 
verbal  orders. 

"[/.  S.  Slat,  at  Large,  XIV,  46,  sue.  I. 


THE  INDEMNITY  ACT  OF  1863  199 

Another  feature  of  the  act  requiring  reenforcement 
was  that  relating  to  the  transfer  of  cases  from  State  to 
Federal  courts.  Though  the  original  measure  was  seem- 
ingly complete  and  explicit  on  this  point,  it  had  not  in 
fact  served  the  purpose  of  actually  asserting  and  main- 
taining Federal  jurisdiction  in  the  face  of  strong  opposi- 
tion on  the  part  of  judicial  ofl&cers  of  the  States.  The 
amendment,  therefore,  was  equipped  with  "teeth."  After 
conferring  the  full  right  of  removal  from  State  courts  to 
circuit  courts  of  the  United  States,  it  provided  that  if  a 
State  court  should  proceed  further  with  a  case  after  such 
removal,  damages  and  double  costs  should  be  enforce- 
able against  the  judges  and  other  officers  involved,  and  in 
addition  such  proceedings  should  be  void.^^ 


IV 

In  its  actual  operation  thus  reenforced,  the  Indemnity 
Act  presented  a  number  of  difficult  points.  One  of  the 
grounds  of  criticism  was  the  extremely  wide  reach  of 
Federal  jurisdiction  which  the  act  provided.  From 
various  quarters  the  argument  was  advanced  that  the 
jurisdiction  conferred  upon  Federal  courts  was  excessive, 
covering  as  it  did,  even  a  case  of  trespass  between  two 
citizens  within  a  State.  In  a  New  York  decision,  the 
dissenting  judge  called  it  an  extraordinary  statute  that 
would  "give  Federal  jurisdiction  in  a  case  where  an  act 
no  matter  how  appalling  was  claimed  to  have  been  done 
under  color  of  authority  derived  from  the  President,  no 
matter  how  frivolous  the  claim."  The  judge  further 
complained  that  in  this  manner  the  person,  not  the  sub- 
ject matter,  was  made  the  criterion  of  jurisdiction,  while 
in  reality  the  case  in  point  did  not  present  an  issue 

Ibid.,  sec.  4. 


200  THE  CONSTITUTION  UNDER  LINCOLN 

"rising  to  the  dignity  and  stature  of  a  Federal  question," 
but  involved  unwarranted  incarceration  by  one  citizen  of 
another  who  was  not  subject  to  military  law.^* 

Federal  jurisdiction  was  similarly  resisted  in  Short  vs. 
Wilson,  a  case  arising  in  Kentucky  in  1866.  A  Federal 
captain  was  being  sued  for  the  seizure  of  a  horse  and  it 
was  claimed  that  he  had  resigned  his  commission  and 
was  a  private  citizen  when  the  seizure  was  made.  The 
court  held  that  the  seizure  was  "an  unauthorized,  wrong- 
ful spoliation  without  any  .  .  .  legal  excuse,  a  mere 
trespass  exclusively  cognizable  by  the  State  court." 
Congress,  it  was  maintained,  could  neither  enlarge  nor 
curtail  the  constitutional  sphere  of  Federal  jurisdiction. 
Beyond  the  constitutional  boundary,  said  the  court,  even 
the  President's  acts  "will  be  as  void  as  the  ultra-consti- 
tutional acts  of  Congress  .  .  .  and  an  action  resulting 
from  it  is  not  a  case  'arising  under  the  Constitution  or 
laws  of  the  United  States.'  "  ^^  The  Indemnity  Act  was 
held  to  be  law  "so  far  as  it  applies  to  cases  over  which 
the  Constitution  confers  jurisdiction  on  the  Federal  judi- 
ciary," but  it  could  not  be  justly  appUed  beyond  this 
limit.  A  lower  Kentucky  court  had  ordered  the  case  to 
be  removed  in  keeping  with  the  Indemnity  Act  to  the 
United  States  Circuit  Court  at  Louisville;  but  the  State 
Court  of  Appeals  reversed  this  decision,  holding  that  the 
case  was  not  legally  transferable  to  the  Federal  court. ^*' 

The  answer  to  be  made  to  such  complaints  is  that  in 
any  case  a  right  reasonably  claimed  under  a  Federal  act 
may  be  made  the  occasion  of  a  transfer  to  Federal  juris- 
diction, and  that  even  though  the  act  may  eventually 

••Jones  vs.  Seward,  41  Barbour  269. 

"This  was  an  approximate  quotation  of  the  wording  found  in  Art. 
Ill,  sec.  2  of  the  Constitution.  For  the  case  of  Short  vs.  Wilson,  see 
1  Bush  350. 

"  In  so  deciding,  the  Court  of  Appeals  applied  the  Kentucky  statute 
of  Feb.  16,  1866,  elsewhere  treated  in  this  chapter. 


THE  INDEMNITY  ACT  OF  1863  201 

be  found  to  be  void,  yet  the  question  of  its  soundness, 
as  well  as  the  validity  of  the  claim  presented,  may  be 
lawfully  deferred  to  the  national  courts.^^  The  intention 
was  to  apply  the  Indemnity  Act,  with  its  reenforcing 
amendment,  only  over  such  subject  matter  as  was  truly 
Federal;  and  if  it  were  found  that  a  mere  wanton  tres- 
pass had  been  committed,  or  that  the  defendant  did  not 
have  the  character  of  a  Federal  official,  or  that  his 
authority  for  the  specific  act  was  defective,  then  it  would 
be  the  duty  of  the  Federal  court  to  remand  the  case  and 
let  the  State  court  handle  it.  The  question  as  to  whether 
Federal  jurisdiction  exists,  is  itself  a  Federal  question; 
and  a  court  of  the  United  States  could  be  properly  criti- 
cized, not  for  entertaining  the  question,  but  for  deciding 
it  wrongly,  or  for  taking  over  a  case  on  the  basis  of  a 
flimsy  pleading  which  failed  to  show  the  necessary  juris- 
dictional facts.^^  Only  in  the  latter  case  would  there  be 
any  trenching  upon  State  jurisdiction.  As  a  matter  of 
fact,  the  Federal  courts  seem  to  have  taken  due  care  to 
avoid  applying  the  Indemnity  Act  as  a  shield  for  a  wan- 
ton trespass  of  the  sort  that  State  courts  alone  could 
take  cognizance  of. 

Another  point  raised  against  the  act  was  its  retro- 
active feature.  Since  the  measure  extended  protection 
for  orders  given  and  acts  committed  (or  omitted)  in  the 
past.  Senator  Edmunds  referred  to  the  act  as  ex  post  facto 
and  held  that  its  benefits  could  not  apply  where  martial 
law  had  not  existed.    He  ventured  the  assertion  that  no 


"  For  a  treatment  of  the  removal  of  cases  from  State  to  Federal 
courts  where  Federal  questions  are  involved,  see  Standard  Encyclopedia 
of  Procedure,  Vol.  22,  p.  788. 

^  Where  a  transfer  from  State  to  Federal  jurisdiction  is  sought, 
the  plaintiff's  pleading  must  show  the  necessary  jurisdictional  facts; 
and  if  a  plaintiff  puts  in  a  Federal  question  which  has  not  even  a  color 
of  merit,  the  court  will  dismiss  the  petition.  Hughes  on  Federal  Pro- 
cedure, sections  236,  237,  309. 


202   THE  CONSTITUTION  UNDER  LINCOLN 

decision  of  a  civilized  court  could  be  found  upholding 
an  ex  post  facto  law  declaring  that  a  past  transaction 
should  be  guilty  or  guiltless  except  as  fortifying  martial 
law  where  civil  law  had  broken  down.^^  Without  dwell- 
ing on  this  point  it  may  be  sufficient  to  note  that  the 
terra  ex  post  facto  properly  applies  to  retroactive  meas- 
ures having  to  do  with  crimes,  such  as  those  which  define 
new  offenses  or  increase  the  punishment  for  existing 
offenses.  In  accepted  legal  usage,  and  in  the  intention 
of  the  Constitution-makers,  such  a  law  as  the  Indemnity 
Act  would  therefore  not  have  been  regarded  as  ex  post 
facto  legislation.  Had  the  act  involved  a  retroactive  del- 
egation of  legislative  authority  to  the  President,  this 
would  have  been  a  different  matter,  and  the  objection 
would  then  have  rested  not  on  the  retroactive — or,  as 
inaccurately  called,  the  ex  post  facto — feature,  but  upon 
the  unconstitutional  delegation  of  power. 

A  very  objectionable  feature  of  the  Indemnity  Act 
as  amended  was  a  clause  which  provided  for  the  virtual 
coercion  of  State  judges.  After  requiring  the  transfer  to 
Federal  courts  of  all  cases  in  which  presidential  or  con- 
gressional authority  could  be  claimed  as  protection  for 
wrongs  committed,  the  act  continued: 

If  the  State  court  shall  .  .  .  proceed  further  in  said  cause  or 
prosecution  .  .  .  ,  all  such  further  proceedings  shall  be  void 
.  .  .  ,  and  all  .  .  .  judges  .  .  .  and  other  persons  .  .  .  pro-i 
ceeding  thereunder  .  .  .  shall  be  liable  in  damages  ...  by 
action  in  a  court  of  the  State  having  .  .  .  jurisdiction,  or  in  a 
circuit  court  of  the  United  States,  .  .  .  and  upon  a  recovery 
of  damages  in  eitlicr  court,  the  party  plaintiff  shall  be  entitled 
to  double  costs.^** 

This  punishment  of  State  judges  for  acts  done  in  a 
judicial  capacity  was  attacked  during  the  congressional 

"Cong.  Globe,  Apr.  18,  1866,  39  Cong.,  1  sess.,  p.  2019. 
*"  U.  S.  Slat,  at  Large,  Xl\,   46,  sec.  4. 


THE  INDEMNITY  ACT  OF  1863  203 

debate  as  a  violation  of  those  well-known  principles  of 
jurisprudence  which  give  to  the  judge  an  independent, 
impartial  character  and  protect  him  from  personal  con- 
sequences as  a  result  of  the  performance  of  judicial  func- 
tions.*^ Here  in  the  very  measure  which  was  intended 
to  exempt  Federal  officers  from  liabihty  before  the  State 
courts  we  find  a  clause  subjecting  State  judges  to  dam- 
ages for  official  acts,  and  permitting  the  use  of  Federal 
courts  to  enforce  such  liability. 

The  few  precedents  for  such  a  course  are  of  doubtful 
character,  A  New  York  statute  then  in  force  subjected 
a  judge  to  a  penalty  of  $1,000  for  refusing  to  issue  a  writ 
of  habeas  corpus  legally  applied  for,  but  this  law  was 
unusually  drastic.  The  corresponding  English  statute 
penalized  the  judge  only  for  such  a  refusal  during  vaca- 
tion time;  and  Kent,  the  learned  commentator,  remarked 
that  this  law  of  his  own  State  presented  "the  first  in- 
stance in  the  history  of  the  English  law"  in  which  judges 
of  the  highest  common  law  tribunal  were  "made  respon- 
sible, in  actions  by  private  suitors,  for  the  exercise  of 
their  discretion  ...  in  term  time."  *- 

That  the  Supreme  Court  of  the  United  States  opposed 
such  a  treatment  of  judges  is  shown  in  the  case  of 
Bradley  vs.  Fisher,  in  which  it  was  declared  to  be  a  prin- 
ciple of  the  highest  importance  that  a  judicial  officer,  in 
exercising  the  authority  vested  in  him,  should  be  free  to 
act  upon  his  own  convictions  without  apprehension  of 
personal  consequences.  In  that  case  the  court  declared: 
"The  principle  which  exempts  judges  of  courts  of  gen- 
eral or  superior  authority  from  liability  in  a  civil  action 
for  acts  done  ...  in  the  exercise  of  their  judicial  func- 
tions, obtains  in  all  countries  where  there  is  any  well- 

*^Cong.  Globe,  39  Cong.,  1  sess.,  pp.  2054-2063. 

**Kent,   Commentaries   on  American  Law    (14th   ed.,   Boston,    1896) 
II,  29-30. 


204  THE  CONSTITUTION  UNDER  LINCOLN 

ordered  system  of  jurisprudence."  The  court  added  that 
such  liability  would  not  apply  even  in  case  of  malicious 
or  corrupt  action,  and  that  for  such  misconduct  impeach- 
ment was  the  appropriate  remedy.^^ 

Such  a  clear  challenge,  however,  had  been  presented 
to  the  Federal  Government  by  the  defiant  attitude  of 
some  of  the  State  courts  that  the  provision  was  retained. 
It  was  justified  by  its  supporters  on  the  ground  that  a 
judge  who,  with  all  the  removal  papers  before  him, 
should  refuse  to  stay  proceedings,  would  be  remiss  in 
the  performance  of  a  merely  ministerial  act,  and  would 
be  going  beyond  the  limit  of  judicial  discretion."**  In 
cases  of  this  sort  American  law  recognized  the  principle 
that  judges  might  be  held  liable.'*^ 

Perhaps  the  most  serious  objection  to  the  Indemnity 
Act  was  its  interference  with  existing  judicial  remedies 
for  private  wrongs.  Suits  were  obstructed  for  the  pur- 
pose of  protecting  Federal  officers  without  any  provision 
being  made  for  the  relief  of  those  who  had  been  de- 

**13  Wall.  3'35.  See  also  Yates  vs.  Lansing,  5  Johnson  (N.  Y.)  283; 
and  Randall  vs.  Brigham,  7  Wall.  523. 

** Howard  in  U.  S.  Senate:     Cong.  Globe,  39  Cong.,  1  sess.,  p.  2060. 

"This  whole  subject  of  the  liability  of  judges  in  American  law  is 
summarized  in  Lawyers'  Reports  Annotated  (old  series)  Vol.  14,  p.  138. 
Judges  of  superior  courts  are  not  personally  liable  for  anything  done 
in  a  judicial  capacity,  and  no  action  may  lie  against  them  for  mis- 
conduct, however  gross,  in  performance  of  judicial  duties.  But  many 
cases  are  cited  in  which  judges  have  been  held  liable,  as  for  unlawful 
commitment,  refusing  to  perform  ministerial  duties,  or  in  cases  where 
judges  of  inferior  authority  have  exceeded  their  jurisdiction.  In  Ex 
parte  Virginia  (100  U.  S.  339),  a  State  judge  was  indicted  in  a  Federal 
court  for  excluding  certain  citizens  as  jurors  on  account  of  color  in 
violation  of  a  law  of  Congress  passed  in  1875.  The  Suj^reme  Court 
here  upheld  as  constitutional  an  act  of  Congress  which  punished  State 
judges  for  such  action,  making  the  distinction  that  the  selection  of 
jurors  is  a  ministerial,  not  a  judicial,  function,  and  that  in  excluding 
colored  men  because  they  were  colored,  the  judge  departed  from  the 
proper  limits  of  his  discretion.  It  would,  of  course,  be  consistent 
with  this  decision  to  contend  that,  for  strictly  judicial  acts,  Congress 
may  not  inflict  punishment  or  impose  liability  upon  State  judges. 


THE  INDEMNITY  ACT  OF  1863  205 

spoiled.  This  failure  to  preserve  remedies  for  the  indi- 
vidual was  frequently  referred  to  by  the  opponents  of 
the  act.^*'  As  one  Senator  expressed  it,  "It  is  not  for 
.  .  .  Congress  to  declare  by  one  sweeping  act  that  noth- 
ing done  in  the  suppression  of  the  rebellion  under  au- 
thority and  by  virtue  of  orders  shall  give  to  the  injured 
an  action  for  damages."  '*'^  A  different  course  might  well 
have  been  taken;  for  the  injured  party  could  have  been 
permitted  to  recover  damages,  and  then  the  damages 
could  have  been  assumed  by  the  United  States.  Thus 
the  officers  could  have  been  protected  (i.e.,  they  could 
have  been  "indemnified"  in  the  true  sense,  instead  of 
immunized)  and  at  the  same  time  the  aggrieved  citizen 
would  not  have  been  deprived  of  the  means  of  judicial 
relief.  Such  assumption  of  damages  by  the  Government 
would  have  been  broadly  analogous  to  the  compensation 
of  owners  for  goods  seized  by  military  authorities  while 
in  occupation  of  enemy  territory  or  to  the  principle  of 
compensation  in  connection  with  the  law  of  eminent 
domain.  The  analogy  would  lie  in  the  recognition  of 
public  ends  that  were  served  by  the  spoliation  of  the 
citizen  and  the  consequent  duty  of  public  compensation. 
A  provision  of  this  sort  seemed  the  more  necessary  in 
view  of  the  general  principle  that  in  case  of  an  act  of 
spoliation  constituting  a  trespass  on  the  part  of  an 
officer,  no  liability  for  compensation  would  belong  to  the 
United  States."*^    In  cases  of  this  sort,  where  the  United 

^'At  first  sight  it  might  seem  that  the  provision  in  section  7  of 
the  Indemnity  Act  prohibiting  suits  after  a  period  of  two  years,  im- 
plied that  within  the  two  years  private  remedies  would  exist.  Such 
a  supposition  would  be  erroneous.  The  limitation  prevented  suits 
from  being  brought  after  the  specified  two  years,  while  within  that 
period  the  act  itself  would  serve  as  an  adequate  defense  against  the 
recovery  of  damages. 

*' Senator  Cowan  in  Cong.  Globe,  39  Cong.,  1  sess.,  pp.  2020-2021. 

**  Wiggins  vs.  U.  S.,  3  Ct.  of  Cls.  Reps.  412;  Mitchel  vs.  Harmony, 
13  How.  115. 


206  THE  CONSTITUTION  UNDER  LINCOLN 

States  Goveniment  did  not  see  fit  to  adopt  the  officer's 
act  as  its  own,  it  was  customary  to  hold  that  the  officer 
alone  would  be  liable;  but  this  sole  remaining  liability 
was  extinguished  by  the  Indemnity  Act. 

This  proposition  of  having  the  United  States  assume 
damages  was,  in  fact,  considered  in  Congress  and  an 
amendment  offered  to  that  effect.^^  It  was  pointed  out 
that  the  adoption  of  this  amendment  would  have  been 
in  keeping  with  the  congressional  practice  of  passing 
special  private  acts  to  indemnify  such  officers  as  have 
been  subjected  to  damages  while  iti  faithful  discharge  of 
duty.  When  the  matter  came  up  for  discussion,  how- 
ever, numerous  practical  objections  were  raised.  It  was 
urged  that  the  plan  was  too  expensive,  that  juries  would 
commonly  grant  larger  damages  in  judgments  against 
the  United  States  than  in  actions  against  individuals, 
and  that  collusion  between  parties  to  the  suit  would 
result  in  a  lukewarm  defense  and  a  prearranged  sharing 
of  the  amount  awarded  between  the  defendant  and  the 
plaintiff.^''  For  these  reasons  nothing  was  done  to  cor- 
rect that  portion  of  the  act  which  was  widely  regarded 
as  its  most  substantial  defect. 


It  remains  to  consider  the  broad  question  of  the  con- 
stitutional validity  of  this  statute  of  indemnity.  The 
objections  above  considered  were,  of  course,  used  as 
arguments  against  the  constitutionality  of  the  act.  The 
excessive  Federal  jurisdiction  confeiTcd,  the  denial  of 
private  remedies,  the  invasion  of  the  proper  field  of  the 
State  judiciary  in  connection  with   trespass  cases,   the 


Cong.  Globe,  39  Cong.,  1  sess.,  pp.  2063,  2065. 
'  Cong.  Globe,  39  Cong.,  1  sess.,  pp.  2063-2064. 


THE  INDEMNITY  ACT  OF  1863  207 

grant  of  immunity  for  "wrongs"  committed  in  districts 
not  under  martial  law,  the  interference  with  the  enforce- 
ment of  contracts,  and  the  retroactive  feature — all  these 
points  were  developed  to  support  the  frequent  conten- 
tion that  the  act  was  unconstitutional. 

One  of  the  emphatic  decisions  denouncing  the  act  was 
that  of  Griffin  vs.  Wilcox,  an  Indiana  case  arising  shortly 
after  the  act  was  passed. ^^  Wilcox,  a  provost  marshal  at 
Indianapohs,  had  arrested  a  civilian.  Griffin,  for  viola- 
tion of  a  military  order  prohibiting  the  sale  of  liquor  to 
enlisted  men.  Out  of  such  a  petty  case  the  judge 
spun  an  elaborate  argument  regarding  martial  law,  war 
powers,  free  speech,  the  purpose  of  the  war,  and  the 
methods  of  the  Government  at  Washington.  Through- 
out this  decision  there  ran  an  undertone  of  opposition 
to  the  Lincoln  administration.  The  immunity  feature  of 
the  Indemnity  Act  was  denounced  as  depriving  the  citi- 
zen of  all  redress  for  illegal  arrests  and  imprisonments; 
for  it  was  pointed  out  that  no  additional  protection  was 
needed  for  such  acts  as  were  legal.  There  was  no  forcible 
resistance  to  authority  by  the  people  of  Indianapolis 
such  as  would  justify  establishing  military  control  over 
civilians;  and  the  use  of  martial  law  methods  without 
such  justifying  cause  was  held  to  be  in  excess  of  the  war 
powers.  Not  even  the  President,  it  was  maintained, 
could  have  properly  conferred  such  authority;  and  the 
Indemnity  Act  could  not  justify  such  usurpation. 

In  spite  of  many  judicial  utterances  in  the  same  tenor, 
the  act  was  sustained  in  its  essential  features  by  various 
decisions  of  the  highest  tribunal.  The  leading  case  for 
the  constitutionality  of  the  act  was  that  of  Mitchell  vs. 
ClarkJ'^    General  Schofield  had  ordered  a  general  seizure 


'21  Indiana  370  (1863). 
'110  U.  S.  647. 


208  THE  CONSTITUTION  UNDER  LINCOLN 

of  intangibles  at  St.  Louis,  and  as  a  result  certain  rents 
were  seized  and  appropriated  by  the  United  States,  thus 
preventing  the  fulfillment  of  the  contractual  obligations 
of  a  lease  between  certain  citizens  of  Missouri.  From 
one  aspect,  therefore,  the  case  involved  the  enforcement 
of  an  ordinary  contract, ^^  and  this,  of  course,  was  sub- 
ject-matter proper  to  a  State  court.  The  fact  that  the 
seizure  had  been  made  by  a  Federal  officer,  however, 
opened  the  way  for  Federal  jurisdiction  under  the 
Indemnity  Act. 

Because  of  a  special  feature  in  this  case,  the  court  did 
not  undertake  to  decide  whether  General  Schofield  had 
the  authority  to  seize  the  debt  or  whether  the  payment 
to  him  was  a  legal  discharge  of  the  obligation.  The  con- 
trolling fact,  according  to  the  court's  interpretation,  was 
that  the  suit  had  not  been  brought  within  two  years,  and 
w^as  therefore  barred  by  the  statute  of  limitations  ^^  which 
was  a  part  of  the  act  of  indemnity.  The  position 
adopted  by  the  court  was  that  "wherever  a  suit  can  be 
removed  into  United  States  courts.  Congress  can  pre- 
scribe for  it  the  law  of  limitations  not  only  for  these 
courts,  but  for  all  courts."  It  was  therefore  held  that 
a  Federal  statute  of  limitations  was  good  in  a  State 
court;  and  in  this  way  the  jurisdiction  of  the  ]\Iissouri 
court  was  not  only  defeated,  but  this  was  done  without 
any  inquiry  into  the  legal  justification  for  the  original 
seizure. 

"The  lessor  of  two  storehouses  sued  for  three  months'  rent  which 
the  tenants  had  been  compelled  to  pay  to  the  military  authorities  for 
"public  use"  while  St.  Louis  was  under  martial  law. 

"  "No  suit  or  prosecution  .  .  .  shall  be  maintained  for  any  arrest  or 
imprisonment  made,  or  other  .  .  .  wrongs  done  ...  or  act  omitted  to 
be  done  ...  by  virtue  of  .  .  .  authority  derived  from  .  .  .  the  Presi- 
dent .  .  .  or  .  .  .  anj'  act  of  Congress,  unless  the  same  shall  have  been 
commenced  within  two  years  .  .  .  after  such  arrest,"  etc.  (The  limita- 
tion, however,  was  not  to  commence  until  the  passage  of  the  act:  U.  S. 
Slat,  at  Large,  XII,  757.) 


THE  INDEMNITY  ACT  OF  1863  209 

In  considering  the  question  of  the  constitutionality  of 
the  Indemnity  Act,  the  court  dwelt  upon  the  purpose  of 
the  law,  pointing  out  that  Federal  military  officers  often 
had  to  perform  delicate  duties  among  people  who,  though 
citizens,  might  be  intensely  hostile  to  the  Government, 
and  that  acts  might  be  done  for  which  there  was  no  ade- 
quate basis  at  the  time.  Then  the  court  proceeded  to 
say:  "That  an  act  passed  after  the  event  which  in  effect 
ratifies  what  has  been  done  and  declares  that  no  suit 
shall  be  sustained  against  the  party  acting  under  color 
of  authority  is  valid,  so  far  as  Congress  could  have  con- 
ferred such  authority  before,  admits  of  no  reasonable 
doubt.  These  are  ordinary  acts  of  indemnity  passed  by 
all  governments  when  the  occasion  requires  it."  The 
court  then  reaffirmed  a  former  case  which  sustained  that 
feature  of  the  Indemnity  Act  which  authorized  the  re- 
moval to  Federal  courts.  The  reasoning  of  the  court 
could  be  summarized  about  as  follows:  (1)  The  Indem- 
nity Act  is  constitutional;  (2)  that  act  authorizes  the 
removal  of  cases  involving  acts  done  by  Federal  officers  to 
the  Federal  courts;  (3)  this  is  such  a  case;  (4)  Congress 
has  the  right  to  estabhsh  the  period  of  limitation  for  such 
suits  and  has  in  fact  done  so;  (5)  consequently,  since 
this  case  was  not  brought  within  the  prescribed  two 
years,  the  plaintiff  cannot  recover  or  even  prosecute  the 
claim  in  the  State  court. 

Justice  Field  emphatically  dissented  to  this  opinion. 
He  knew  of  no  law  to  justify  a  military  officer  in  ob- 
structing the  payment  of  a  debt  due  from  one  loyal  citi- 
zen to  another,  neither  of  them  being  in  the  military 
service,  nor  in  an  "insurrectionary"  State  where  the 
courts  were  inoperative.  Civil  war  in  one  part  of  the 
country  did  not,  in  his  opinion,  suspend  constitutional 
guarantees  in  other  parts.  "Our  system  of  civil  polity," 
he  said,  "is  not  such  a  rickety  and  ill- jointed  structure 


210  THE  CONSTITUTION  UNDER  LINCOLN 

that  when  one  part  is  disturbed  the  whole  is  thrown  into 
confusion  and  jostled  to  its  foundation."  Referring  to 
the  suspension  of  the  privilege  of  habeas  corpus,  he 
urged  that  the  Constitution  does  not  forbid,  during  such 
suspension  or  by  reason  of  it,  the  institution  of  suits  by 
despoiled  citizens,  nor  does  the  Constitution  authorize 
Congress  to  forbid  it.  Though  admitting  that  Congress 
may  indemnify  those  who,  in  great  emergencies,  acting 
under  pressing  necessities  for  the  public  welfare,  are 
unable  to  avoid  invading  private  rights  in  support  of 
the  government,  he  held  that  "between  acts  of  indemnity 
in  such  cases  and  the  attempt  to  deprive  the  citizen  of 
his  right  to  compensation  for  wrongs  committed  against 
him  or  his  property,  or  to  enforce  contract  obligations, 
there  is  a  wide  difference  which  cannot  be  disregarded 
without  a  plain  violation  of  the  Constitution."  Neither 
the  act  of  1863  nor  the  amendment  of  1866,  he  held, 
could  properly  be  construed  to  apply  to  actions  for  breach 
of  contract  between  citizens  in  loyal  States,  since  such 
contracts  were  under  State  jurisdiction.  If  such  a  con- 
struction were  possible,  then  he  maintained  that  the 
legislation  would  be  unconstitutional. 

It  should  be  noted  that  the  principal  ground  of  objec- 
tion to  the  court's  position  in  Mitchell  vs.  Clark  was  the 
extreme  application  of  the  Indemnity  Act  (or,  more  spe- 
cifically, the  statute  of  limitation  included  in  the  act) 
so  that  it  defeated  a  private  remedy  and  prevented  the 
enforcement  of  an  ordinary  contract  such  as  would  nor- 
mally lie  entirely  within  State  jurisdiction.  Both  the 
court  and  the  dissenting  opinion  upheld  the  validity  of 
the  act  so  far  as  the  protection  of  Federal  ofl5cers  was 
concerned;  but  Field  considered  the  order  of  General 
Schofield  unwarranted  and  would  not  admit  the  force 
of  the  statute  of  limitations  as  a  bar  in  the  case,  while 
he  also  insisted  that  individual  rights  should  have  been 


THE  INDEMNITY  ACT  OF  1863  211 

better  protected.  Had  Congress  provided  the  desired 
oflBcial  immunity  by  some  method  that  would  have  pre- 
served private  remedies,  the  chief  basis  of  criticism  would 
have  been  removed. 

It  will  thus  be  seen  that  the  essential  provisions  of  the 
Indemnity  Act  were  sustained  by  the  highest  tribunal. 
There  was,  however,  one  feature  of  the  act  which  did  not 
stand  the  test  of  constitutionahty.  This  was  the  pro- 
vision for  a  trial  de  novo  of  the  facts  as  well  as  the  law 
in  a  Federal  court  after  a  jury  had  rendered  its  verdict 
in  a  State  court. 

The  Seventh  Amendment  of  the  Constitution  provides 
as  follows: 

In  suits  at  common  law  ...  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law. 

This  amendment  has  been  interpreted  in  a  number  of 
judicial  decisions.  It  has  been  held  that  the  "common 
law"  here  alluded  to  is  the  common  law  of  England, 
"the  grand  reservoir  of  all  our  jurisprudence,"  and  that 
according  to  its  principles  the  facts  once  tried  by  a  jury 
are  not  to  be  re-examined  unless  a  new  trial  is  granted 
in  the  discretion  of  the  court  before  which  the  suit  may 
be  pending,  or  unless  the  judgment  of  such  court  is  re- 
versed by  a  superior  tribunal  on  writ  of  error  and  a 
venire  facias  de  novo  is  awarded.  In  either  case  the  new 
trial  would  be  conducted  in  the  same  court  in  which 
the  former  defective  trial  occurred.  On  this  matter  the 
courts  have  spoken  decisively;  and  it  has  been  referred 
to  as  the  "invariable  usage  settled  by  the  decisions  of 
ages."  ^^ 

"U.  S.  vs.  Wonson,  1  Gallison  5;  28  Fed.  Gas.  745.  Judge  Story  in 
delivering  this  opinion  (in  the  Federal  circuit  court  for  Massachu- 
setts) wrote:     "We  should  search  in  vain  in  the  common  law  for  an 


212  THE  CONSTITUTION  UNDER  LINCOLN 

But  the  fifth  section  of  the  Indemnity  Act  contained 
the  following  clause: 

[It  shall]  be  competent  for  either  party  .  .  .  after  the  rendi- 
tion of  a  judgment  in  any  such  cause  [i.e.,  in  prosecutions 
against  officers  acting  under  authority  of  the  President]  .  .  , 
to  remove  the  same  [from  the  State  court]  to  the  circuit  court 
of  the  United  States  ,  .  .  and  the  said  circuit  court  shall 
thereupon  proceed  to  try  and  determine  the  facts  and  the  law 
in  such  action  in  the  same  manner  as  if  the  same  had  been 
there  originally  commenced,  the  judgment  in  such  case  not- 
withstanding.^^ 

The  only  other  instance  in  which  Congress  has  under- 
taken to  authorize  a  second  trial  by  a  jury  in  a  Federal 
court  while  a  former  jury's  verdict  in  the  same  case  had 
not  been  set  aside,  was  during  the  War  of  1S12.  An 
"act  to  prohibit  intercourse  with  the  enemy,"  passed  on 
February  4,  1815,^"^  had  a  provision  identical  with  that 
above  quoted  from  the  Indemnity  Act.^®  In  fact,  the 
Indemnity  Act  was  modeled  upon  the  law  of  1815  in 
this  respect.  Though  the  Act  of  1815  had  been  de- 
nounced as  unconstitutional  in  a  Federal  circuit  court 
in  Massachusetts,  this  provision  was  repeated  in  the 
Acts  of  1863  and  1866,  in  spite  of  the  opposition  of 
Senators  who  called  attention  to  the  matter  in  debate.'^^ 

It  became  the  duty  of  the  Supreme  Court  to  pass 

instance  of  an  ap]iellatc  court  retrj'ing  the  cause  by  a  jun'  while  the 
former  verdict  and  judgment  remained  in  full  force."  See  also  Capital 
Traction  Compan)'  vs.  Ilof,  174  U.  S.  1. 

"  U.  S.  Stat,  at  Large,  XII,  757.  (This  section  was  retained  in  the 
amending  act  of  18G6.) 

"  Ratifications  of  the  Treat}'-  of  Ghent  were  exchanged  at  Washington, 
Fcbniaiy  17,  1815. 

"  U.  S.  Stat,  at  Large,  III,  195,  sec.  8.  (There  are  many  points  of 
similarity  between  this  measure  and  the  Indemnity  Act  of  1863.) 

"Senators  Bayard  and  Browning  dealt  with  these  points:  Cong. 
Globe,  37  Cong.,  3  sess.,  pp.  538-539. 


THE  INDEMNITY  ACT  OF  1863  213 

upon  this  feature  of  the  Indemnity  Act  in  the  case  of 
The  Justices  vs.  Murray,  which  came  up  from  New  York 
in  1869. ^'^  An  action  for  false  imprisonment  was  brought 
in  the  State  court  against  Murray,  the  marshal  of  the 
Federal  District  Court  for  Southern  New  York.  Mur- 
ray's defense  was  an  alleged  order  of  the  President, 
which  under  the  Indemnity  Act  would  have  served  as 
a  protection;  but  the  jury  found  no  evidence  in  support 
of  this  defense,  and  a  verdict  for  the  plaintiff  was  there- 
fore rendered.  When  steps  were  later  taken  for  a  com- 
plete retrial  in  the  Federal  circuit  court,  the  State  au- 
thorities resisted  on  the  ground  that  the  Indemnity  Act, 
in  this  respect,  was  unconstitutional. 

The  chief  point  to  which  the  Supreme  Court  directed 
its  attention  was  whether  the  Seventh  Amendment  ap- 
phed  to  a  cause  tried  by  a  jury  in  a  State  court.  On 
this  point  the  court  said:  "There  is  nothing  in  the  his- 
tory of  the  amendment  indicating  that  it  was  intended 
to  be  confined  to  cases  coming  up  for  revision  from  the 
inferior  Federal  courts,  but  much  is  there  found  to  the 
contrary.  Our  conclusion  is  that  so  much  of  the  fifth 
section  of  the  [Indemnity  Act]  as  provides  for  the  re- 
moval of  a  judgment  in  a  State  court  and  in  which  the 
cause  was  tried  by  a  jury,  to  the  circuit  court  of  the 
United  States  for  a  retrial  of  the  facts  and  law,  is  not 
in  pursuance  of  the  Constitution  and  is  void." 

In  keeping  with  this  decision  the  Federal  control  of 
cases  under  the  Indemnity  Act  would  have  had  to  be 
exercised  through  removal  while  the  case  was  pending, 
or  through  review  by  the  Supreme  Court  of  the  United 
States  on  writ  of  error,  and  not  by  a  trial  de  novo  in  an 
inferior  Federal  court  after  the  State  tribunal  had  pro- 
nounced judgment  on  the  basis  of  a  jury's  verdict.  But 
such  removal  and  review  have,  throughout  our  history, 
~9  WaU.  274. 


214  THE  CONSTITUTION  UNDER  LINCOLN 

proved  to  be  adequate  instruments  for  the  maintenance 
of  Federal  judicial  supremacy. 

In  its  many  unusual  features  the  Indemnity  Act  bears 
the  unmistakable  stamp  of  war  legislation.  The  wide 
range  of  Federal  jurisdiction  which  it  afforded,  the  ex- 
traordinary methods  of  acquiring  such  jurisdiction,  the 
denial  of  private  remedies  for  admitted  "wrongs,"  the 
subjection  of  State  judges  to  personal  damages,  the  ap- 
plication of  a  Federal  statute  of  limitations  to  State 
causes,  and  the  unconstitutional  provision  for  a  re-ex- 
amination of  facts  once  tried  by  a  jury — all  these  ele- 
ments of  the  law  are  the  abnormal  product  of  war 
conditions.  The  law  must  be  judged  in  the  light  of  the 
fact  that  it  was  originally  passed  in  the  very  midst  of 
a  desperate  war,  and  was  amended  in  the  face  of  State 
defiance  by  a  Congress  whose  main  interest  was  the 
enactment  of  drastic  "reconstruction"  measures.  Ex- 
treme legislation  was  characteristic  of  the  period,  and 
this  unique  measure  was  only  typical  of  the  sort  of 
irregularity  that  creeps  into  the  law  during  war  or  other 
times  of  great  disturbance. 


CHAPTER  X 

THE    REGIME    OF    CONQUEST    IN    OCCUPIED    DISTRICTS    OF 

THE   SOUTH 

I.   Military  occupation  in  general 

II.   Modification  of  the  general  rules  of  military  occupa- 
tion to  suit  the  peculiar  conditions  of  the  Civil  War 

III.  Inconsistent  treatment  of  occupied  regions  as  parts 

of  the  United  States  but  also  as  enemy  territory 

IV.  Conditions  attending  Union   rule  in  the  South:    su- 

premacy of  Federal  over  local  power;   maintenance 
of  military  government;   confusion  of  authority 
V.   Administration  of  justice  in  occupied   districts 
VI.   Constitutional  basis  of  the  governments  of  occupation: 
Succession  of  governmental   changes   in   the  South 
during  and  after  the  Civil  War 

Where  portions  of  Southern  territory  were  brought 
under  Union  occupation  a  situation  existed  which  pre- 
sented various  legal  problems.  Our  consideration  of  this 
subject  may  well  begin  with  a  brief  review  of  the  gen- 
eral principles  of  military  occupation,  after  which  we 
may  note  the  special  conditions  which  obtained  during 
the  struggle  betwen  the  States. 


The  powers  of  an  occupying  army  in  the  government 
of  conquered  territory  are  recognized  belligerent  rights 
resting  upon  the  rules  of  war.  It  is  suflScient  for  our 
present  purpose  to  recall  briefly  some  of  the  leading 
features  of  this  branch  of  international  law,  for  a  full 
discussion  of  which  the  reader  is  referred  to  the  standard 

215 


216  THE  CONSTITUTION  UNDER  LINCOLN 

treatises.  TMien  a  nation  at  war  obtains  efifective  posses- 
sion of  a  portion  of  the  enemy's  territorj',  the  conquering 
State  assumes,  during  the  period  of  such  possession,  the 
governing  power  over  the  territory  held.  The  authority 
of  the  dispossessed  State  is  for  the  time  suspended;  and 
outside  nations  are  expected  to  recognize  the  rights  of 
the  occupying  State  and  to  deal  with  such  State  as  the 
governing  power  of  the  district  in  question.  Private 
citizens  within  the  district  owe  temporary'-  allegiance  to 
the  occupant;  and  acts  of  hostility  committed  by  non- 
combatants,  however  patriotic  in  motive,  are  condemned 
by  the  laws  of  war.  If  patriotic  ardor  urges  an  inhabi- 
tant to  resist  the  occupying  power  by  force,  the  only 
legitimate  method  of  such  resistance  is  by  joining  the 
armed  forces  of  his  dispossessed  sovereign.  If  he  re- 
mains a  non-combatant  within  the  occupied  lines,  he 
is  expected  to  acquiesce  in  the  occupant's  authority. 

The  government  of  the  occupied  region  is  essentially 
a  military  government,  and  it  is  to  the  militarj^  chieftain 
that  one  looks  as  the  paramount  authority.  It  does  not 
follow,  however,  that  this  military  rule  should  be  exer- 
cised without  restraint.  Civilized  nations  prosecute  war 
in  accordance  with  recognized  rules  and  do  not  permit 
themselves  to  use  every  method  which  military  force 
makes  physically  possible.  IMilitary  occupation  is  con- 
ducted within  limitations,  and  the  occupying  power  has 
duties  as  well  as  rights.  Personal  and  property  rights 
of  citizens  are  to  be  respected.  The  belligerent  must  not 
plunder  the  inhabitants.  He  must  not  deport  them  nor 
force  them  to  fight  against  their  government.  It  is  his 
duty  to  maintain  order  and  to  offer  security  to  peacefully 
minded  citizens.  The  chief  significance,  in  fact,  of  the 
law  of  military  occupation  is  the  necessity  of  preserving 
orderly  government ;  and  it  is  largely  for  this  reason  that 
the  invading  power  succeeds  to  that  governmental  con- 


OCCUPATION  OF  THE  SOUTH  217 

trol  which  formerly  belonged  to  the  dispossessed  enemy. 
Offenses  of  a  military  nature  are  to  be  dealt  with  by 
courts-martial  or  military  conamissions;  but  ordinary 
civil  and  criminal  justice  is  to  be  disturbed  as  little  as 
possible. 

The  administration  of  the  local  government  should 
preferably  be  left  in  the  hands  of  the  existing  local 
officials  whose  duty  it  is  to  support,  not  to  defy,  the 
occupying  power.  The  customs  and  laws  of  the  locality 
are  to  be  respected ;  and  the  people  should  be  unmolested 
in  their  peaceful  pursuits. 

A  distinction  should  be  maintained  between  military 
occupation  and  annexation.  Consequently,  the  occupy- 
ing State  is  not  justified  in  imposing  its  language,  cus- 
toms and  manner  of  life  upon  the  people  of  the  invaded 
district  nor  in  forcing,  upon  them  an  alien  religion  or 
culture.  Title  by  conquest,  obtained  by  treaty  or  by 
completed  war,  is  a  matter  very  different  from  the  tem- 
porary occupancy  of  an  invader. 

The  invading  State  has  primarily  two  kinds  of  powers : 
ordinary  governmental  powers  (inherited  from  the  dis- 
possessed State)  and  such  extraordinary  mihtary  power 
as  the  occasion  demands.  A  military  regime  may  be 
necessary  because  of  the  activity  of  bandits  or  guerrillas, 
or  because  of  the  unsettled  condition  of  society,  and 
drastic  measures  may  become  imperative  for  the  public 
health  or  safety;  but  such  a  military  regime  should  be 
conceived  as  a  protection,  not  as  a  means  of  oppression. 
"Military  necessity"  should  be  strictly  interpreted,  and 
should  not  be  construed  as  giving  license  to  brutality  or 
malice.  The  line  should  be  carefully  drawn  between  the 
justifiable  severity  of  mihtary  rule  and  the  wanton  ex- 
cesses of  cruelty  or  revenge.  If  the  occupant's  authority 
is  abused  the  citizen  has  no  redress,  unless  it  be  in  rep- 
aration after  the  war.    Hence  a  civilized  government  will 


218  THE  CONSTITUTION  UNDER  LINCOLN 

put  restraints  upon  oflScers  in  charge  of  a  government  of 
occupation.^ 

n 

The  application  of  these  principles  of  military  occupa- 
tion during  the  Civil  War  now  claims  our  attention. 
The  "rebellion"  was  "attended  by  the  general  incidents 
of  a  regular  war,"  ^  according  to  the  decision  of  the 
Supreme  Court;  and  the  maintenance  of  government  in 
occupied  districts  was  not  only  the  right  but  the  duty  of 
the  National  Government.  Federal  rights  of  military 
occupation  in  the  South  according  to  the  general  usages 
of  war  were  thus  clearly  established;  and  this  branch  of 
the  law  of  nations  constituted  the  primary  justification 
for  the  government  of  the  occupied  districts.  There 
were,  however,  significant  modifications  owing  to  the 
peculiar  nature  of  the  war  for  the  L"^nion.  Since  the 
L^'nited  States  was  not  prosecuting  a  foreign  war,  but, 
according  to  the  Government's  interpretation,  merely 
seeking  to  "suppress  an  insurrection,"  it  did  not  consider 
itself  on  foreign  soil  when  occupying  Tennessee  or 
Louisiana.  On  the  contrary,  the  Government  insisted 
that  it  was  merely  reclaiming  its  own  in  "restoring"  and 
"repossessing"  the  places  and  districts  that  had  been 
taken  by  Confederate  forces.  All  previous  authority 
within  the  occupied  regions  had  been  either  Federal  or 
State.  As  to  Federal  powers,  they  were  naturally  re- 
sumed so  far  as  the  disturbed  circumstances  permitted. 

*  Besides  the  recognized  treatises  on  international  law,  one  may  con- 
sult also  the  following  works  and  documents  for  a  discussion  of  the 
rules  of  military  occupation:  G.  B.  Davis,  Military  Law;  The  Military 
Law  of  the  United  States  (War  Dept.,  Office  of  the  Judge  Advocate 
General,  1911);  W.  E.  Birkhimer,  Military  Government  and  Martial 
Law;  "Instructions  for  the  government  of  armies  ...  in  the  field"  (0. 
R.,  Ser.  II,  Vol.  5,  pp.  671  ct  seq). 

*The  Grapeshot,  9  Wall.  129,  132. 


OCCUPATION  OF  THE  SOUTH  219 

When  it  came  to  State  functions,  the  controlling  factors 
were  the  ultimate  obligation  to  restore  the  State  govern- 
ments in  the  exercise  of  their  constitutional  powers,  and 
the  immediate  necessity  of  governing  the  occupied  re- 
gions by  extraordinary  national  authority  during  the 
transitional  period  prior  to  the  completion  of  reconstruc- 
tion. Thus  it  may  be  said  that  the  rights  assumed  in 
occupied  regions  of  the  South  were  the  recognized  rights 
of  mihtary  occupation  plm  that  authority  which  the 
Union  Government  exerted  in  the  resumption  of  Federal 
functions  and  in  the  temporary  assumption  of  State 
functions  while  awaiting  the  establishment  of  "loyal" 
State  governments. 

The  fact  that  the  conflict  was  a  domestic  war  thus 
increased  rather  than  diminished  the  rights  of  the  United 
States  as  conqueror.  The  United  States  was  not  merely 
prosecuting  a  war.  It  was  overthrowing  a  "pretended" 
government  and  reasserting  what  was  regarded  as  its 
own  rightful  power,  not  hesitating  to  occupy  temporarily 
the  domain  of  State  authority. 

The  inhabitants  of  New  Orleans  in  1862  were  in  a 
different  situation  from  those  of  Tampico  in  1847.  Both, 
it  is  true,  were  under  military  occupation.^  The  rights 
and  obligations  of  a  conqueror  appHed  to  both;  and  the 
war  power  of  the  President  in  each  case  embraced  the 
maintenance  of  a  government  of  occupation.  But  the 
United  States  in  1847  was  not  seeking  to  supplant  the 
Mexican  Government.  It  was  merely  exerting  its  will 
by  force  against  that  Government  for  certain  hmited 
objects.  American  authorities  in  Tampico  looked  for- 
ward to  the  ultimate  relinquishment  of  their  authority. 
At  any  rate  the  action  of  the  treaty-making  power — an 


'For  a  discussion  of  American  occupation  in  Mexico,  see  Justin  H. 
Smith,  "American  Rule  in  Mexico,"  Am.  Hist.  Rev.,  XXIII,  287-302. 


220  THE  CONSTITUTION  UNDER  LINCOLN 

international  function — would  be  awaited  before  such 
authority  could  become  permanent. 

It  was  not  so  in  the  case  of  New  Orleans.  No  treaty 
was  anticipated.  The  purpose  of  the  war  was  not  simply 
to  exert  pressure  against  the  Confederate  Government, 
but  to  destroy  that  Government  and  reclaim  all  the  ter- 
ritory within  its  grasp.  The  subsequent  renewal  of  con- 
stitutional relations  between  Louisiana  and  Washington 
would  be  fundamentally  different  from  the  restoration  of 
international  relations  between  Mexico  and  the  United 
States.  An  awkward  transitional  period  would  ensue 
before  the  renewal  of  constitutional  relations  could  be 
made  complete;  but  the  chief  significance  of  this  transi- 
tional period  would  be  that,  during  its  continuance,  the 
Union  grip  on  Louisiana  would  be  maintained  in  such  a 
manner  as  to  comprehend  State  as  well  as  Federal  func- 
tions. So  far  as  local  administration  was  concerned. 
New  Orleans  would  look  to  the  restoration  of  control 
under  Louisiana  law,  just  as  Tampico  would  anticipate 
the  reestabhshment  of  Mexican  law;  but  this  restora- 
tion of  local  control  would  be  but  a  fulfillment  of  the 
Constitution  of  the  United  States,  which  recognizes 
State  authority  in  local  affairs,  and  would  be  subject  to 
such  important  modifications  as  might  develop  during 
and  after  the  war.  During  the  occupation  Congress 
would  legislate  for  New  Orleans  in  the  exercise  of  its 
normal  functions,  treating  that  city  as  an  American  port 
within  the  boundaries  of  the  United  States,  while  Tam- 
pico was  but  a  foreign  port  under  American  occupation.* 

*  In  Fleming  vs.  Page  it  was  held  that  Tampico  was  a  foreign,  not 
an  American,  port  during  its  occujiation  by  American  forces.  (9  How. 
603.)  It  is  true  that  tariffs  were  collected  by  the  American  authorities 
in  the  Mexican  jiorts,  but  this  collection  of  duties  was  an  executive 
measure  and  was  interpreted  as  the  levy  of  a  "contribution"  for  the 
support  of  the  army.  Congre.-^s  had  no  part  in  the  fixing  of  thcBC 
tariffs.     {House  Rep.  No.  Hi),  30  Cong.,  2  sess.) 


OCCUPATION  OF  THE  SOUTH  221 

Allegiance  to  the  United  States  was  demanded  of  the 
people  of  Louisiana;  and  the  oath  of  loyalty  was  insisted 
upon  as  a  sign  of  this  allegiance.  From  the  Mexicans, 
however,  no  such  oath  was  exacted,  temporary  allegiance 
to  the  government  of  occupation  being  all  that  was 
asked. 

Ill 

The  special  circumstances  by  which  military  occupa- 
tion in  the  South  during  the  Civil  War  is  to  be  differen- 
tiated from  miUtary  occupation  in  general  become  espe- 
cially prominent  when  we  consider  the  opposite  elements 
involved  in  the  reassertion  of  national  authority.  Two 
widely  different  conditions  prevailed  in  the  occupied 
districts.  From  one  angle  the  resumption  of  Federal 
supremacy  in  the  South  meant  the  extension  of  loyal 
territory  over  which  the  national  law  applied.  But  at 
the  same  time,  Federal  rule  in  the  South  also  meant  the 
exercise  of  authority  over  territory  ''in  rebellion."  Let 
us  now  examine  these  two  inconsistent  principles  in 
their  actual  application. 

In  various  respects,  territory  in  occupation  was 
treated  as  a  part  of  the  United  States.  In  Texas  vs. 
White,  the  Supreme  Court  held  that  the  Union  is  in- 
dissoluble and  that,  by  its  ordinance  of  secession,  Texas 
"did  not  cease  to  be  a  State,  nor  her  citizens  to  be  citi- 
zens of  the  Union."  ^  This  principle  applied  to  all  the 
seceded  States.  Yet  the  pretended  secession,  since  it 
amounted  to  rebellion  and  war,  had  far-reaching  conse- 
quences. It  made  the  residents  of  the  "insurrectionary" 
regions  enemies  of  the  United  States  (according  to  the 
Prize  Cases)  and  at  the  same  time  "rebels."  ®  Some 
attempt  was  therefore  made  to  introduce  a  distinction 

'7  Wall.  700.    (The  rights  of  Federal  citizenship  were  suspended.) 
•Prize  Cases,  2  Black  674,  678,  693;   Ford  vs.  Surget,  97  U.  S.  594, 
604-605;  House  Rep.  No.  262,  43  Cong.,  1  sess.,  p.  5. 


222  THE  CONSTITUTION  UNDER  LINCOLN 

between  districts  in  occupation  and  districts  still  in 
active  rebellion.  IMilitary  occupation,  said  the  Supreme 
Court  in  the  Venice  case,  "does  not,  indeed,  restore 
peace,  or,  in  all  respects,  former  relations;  but  it  replaces 
rebel  by  national  authority,  and  recognizes,  to  some 
extent,  the  conditions  and  the  responsibilities  of  national 
citizenship."  "^ 

There  were  certain  notable  consequences  of  this  return 
to  (or  retention  of)  national  citizenship.  Tennessee 
was  expected  to  furnish  her  "quota"  of  troops  to  the 
Federal  army,  and  much  of  Governor  Johnson's  time 
was  devoted  to  the  recruiting  of  Union  regiments.^ 
Colored  regiments  in  Tennessee,  Louisiana  and  else- 
where were  formed  in  response  to  the  Federal  law  for 
arming  the  negroes.  When  the  direct  tax  of  twenty  mil- 
lion dollars  was  apportioned  among  the  States  in  1861, 
quotas  were  assigned  to  all  of  the  States  of  the  Confed- 
eracy, and  the  tax  was  collected  upon  the  resumption  of 
Union  authority.**  The  blockade  was  lifted  from  such 
Southern  ports  as  came  under  Union  control,  and  trade 
with  these  ports,  subject  to  contraband  restrictions,  was 
renewed.^"  Customs  duties  were  collected  upon  this 
renewed  trade,  and  internal  revenue  duties  were  also 
collected  under  Federal  law.  The  activities  of  George 
S.  Denison  whom  Secretaiy  of  the  Treasury  Chase  ap- 
pointed to  assume  charge  of  the  collection  of  customs  in 
Louisiana  and  who  later  took  over  the  internal  revenue 
collections,  reveal  a  vigorous  enforcement  of  the  Federal 
revenue  laws  during  the  military  occupation. ^^ 

'2  Wall.  277. 

*  C.  R.  Hall,  Andrew  Johnson,  Military  Governor  of  Tennessee,  Ch. 
z. 

•Act  of  Aug.  5,  1861 ;  U.  S.  Stat,  at  Large,  XII,  294.  Injra,  pp.  A23-A24. 

i'U.  S.  Stat,  at  Large,  XII,  1263;  XIII,  750. 

""Letters  from  G.  S.  Denison  to  Salmon  P.  Chase,"  Am.  Hist.  Ass. 
An.  Rep.,  1902,  Vol.  2,  pp.  297  et  scg. 


OCCUPATION  OF  THE  SOUTH  223 

On  the  other  hand,  territory  in  occupation  was  in 
certain  respects  treated  as  if  it  were  enemv  territory, 
or  were  still  territory  in  rebellion.  Certain  examples 
may  be  presented  to  illustrate  this  fact.  There  were  no 
normal  State  and  Federal  relations  subsisting  between 
the  Government  at  Washington  and  the  wartime  gov- 
ernments of  the  South, ^2  except,  perhaps,  in  Virginia, 
and  even  there  the  Federal  recognition  of  the  feeble 
"restored"  government  was  but  partial.^ ^  Property  was 
taken  under  the  confiscation  acts  in  occupied  regions.^* 

**  Normal  relationships  would  have  involved  the  regular  functioning 
of  the  executive,  legislative  and  judicial  branches  of  the  State  govern- 
ment, representation  of  the  State  in  both  houses  of  Congress,  and,  in 
general,  the  honoring  of  State  authority  in  its  proper  field.  Even 
though  restored  to  loyal  control,  a  State  would  be  in  an  abnormal 
condition  if  under  Federal  military'  rule,  or  if  its  "governor"  were 
appointed  by  the  President  and  subject  to  his  orders;  for  a  State  gov- 
ernor does  not  take  orders  from  the  President.  None  of  the  States 
of  the  Confederacy  except  Tennessee  and  Virginia  were  represented  in 
the  two  war  Congresses — i.e.,  the  Thirty-Seventh  and  Thirty-Eighth. 
The  representation  of  the  "restored  government"  of  Virginia  was  but 
partial.  {Infra,  pp.  463-466.)  In  the  Thirty-Seventh  Congress,  Tennessee 
was  represented  in  the  lower  house.  In  the  Senate,  however,  the 
State  had  only  one  Senator  from  the  time  of  the  expulsion  of  Nicolson 
in  July,  1861,  until  Johnson's  resignation  in  March,  1862,  and  after 
that  no  Senator  at  all,  as  Johnson's  seat  was  left  vacant.  The  State 
had  no  members  in  either  house  in  the  Thirty-Eighth  Congress.  Presi- 
dent Lincoln  believed  that  Johnson,  as  military  governor  and  head 
of  the  provisional  government  of  Tennessee,  had  the  power  to  appoint 
United  States  Senators  and  was  in  favor  of  this  being  done;  but 
no  such  action  was  taken.  (Horace  Maynard  to  Johnson,  Apr.  24, 
1862:     Johnson  Papers,   XVIII,   4106.) 

^  At  the  time  that  Virginia  was  conceived  to  be  under  the  authority 
of  the  "restored  government"  at  Alexandria,  certain  portions  of  the 
State  under  Union  occupation  were  governed  largely  by  the  orders 
of  military  officers  acting  directly  under  the  President.  (Infra,  pp.  466- 
469.) 

"  General  Butler  "sequestered"  estates  of  certain  prominent  South- 
erners, using  Twiggs'  mansion  at  New  Orleans  as  his  own  residence, 
and  carried  out  a  general  policj'  of  confiscation  by  military  orders. 
The  seizures  and  sales  of  his  "sequestration  commission"  were  extensive. 
A  mass  of  material  on  this  subject  in  the  Attorney  General's  files  and 
in  the  archives  of  the  Treasury  Department  has  been  examined  by  the 
writer.  The  following  published  material  may  be  cited:  Parton,  But- 
ler at  New  Orleans,  467  et  seq.;  0.  R.,  Ser.  I,  Vol.  15,  pp.  571  et  seq.; 


224  THE  CONSTITUTION  UNDER  LINCOLN 

Cotton  worth  many  millions  was  seized  under  the  Cap- 
tured Property  Act  which  could  have  no  application 
except  as  a  penal  measure  directed  against  districts  in 
rebellion. ^'^  The  direct  tax,  which,  as  we  have  noted, 
was  apportioned  among  the  "rebellious"  as  well  as  the 
"loyal"  States,  was  applied  in  the  South  with  a  differ- 
ence; for  a  heavy  penalty  was  imposed  in  those  regions 
where  Federal  authority  had  been  resisted,  and  a  drastic 
method  of  direct  collection  by  Federal  officials  was 
employed.^® 

It  is  hardly  worth  while  to  attempt  to  harmonize 
these  diverse  policies  toward  the  South,  for  inconsistency 
seemed  inherent  in  the  situation.  We  have  noted  in  a 
previous  chapter  the  "double-status  theory"  ^"^  by  which 
the  Confederates  were  held  to  be  within  the  country  but 
at  the  same  time  enemies  of  the  country.  Many  of  the 
curious  anomalies  which  followed  from  this  double  char- 
acter remained  after  conquest,  and  the  regions  in  occupa- 
tion were  at  the  same  time  treated  as  conquered  terri- 
tory subject  to  belligerent  powers  and  as  parts  of  the 
United  States. 

IV 

We  may  now  observe  more  closely  some  of  the  special 
conditions  of  Union  rule  in  the  South.  The  first  prob- 
lem that  presented  itself  was  the  substitution  of  Federal 
for  local  authority.  Circumstances  determined  the  ex- 
tent to  which  local  officers  were  supplanted  by  new 
appointees.  If  the  existing  city  and  county  officers 
showed  a  willingness  to  cooperate  with  the  occupying 

House  Exec.  Doc.  No.  102,  40  Cong.,  2  sess.;  Correspondence  oj  B.  F. 
Butler,  Vols.  I  and  II,  passim. 

""Infra,  pp.  323-328. 

"/n/ra,  pp.  317-323. 

i' Supra,  Chapter  III. 


OCCUPATION  OF  THE  SOUTH  225 

authorities,  they  were  in  some  cases  allowed  to  remain; 
otherwise  they  were  dismissed.  New  State  executive 
officers  for  Tennessee,  such  as  Secretary  of  State,  Comp- 
troller, and  Attorney  General,  were  installed  by  Johnson 
as  military  governor;  and  when  the  mayor  and  council 
of  Nashville  refused  the  oath  of  allegiance  to  the  United 
States,  their  offices  were  bestowed  upon  Johnson's  ap- 
pointees.^® In  New  Orleans,  General  Butler  proposed  to 
the  mayor  and  council  that  they  continue  in  the  exer- 
cise of  their  accustomed  functions  subject  to  the  para- 
mount military  authority  which  the  General  embodied. 
Recognizing  the  conquest  as  a  fact,  and  desiring  to  avoid 
conflict,  the  municipal  officers  at  first  compUed  and  the 
city  government  went  on  as  usual.  In  return,  Butler,  in 
one  of  his  less  truculent  moods,  withdrew  the  Federal 
troops  from  the  city,  thus  removing  the  appearance  of 
military  pressure.  This  situation  was  of  short  duration, 
however,  for  before  the  month  was  out,  Butler  had  the 
mayor  deposed  and  imprisoned,  and  Shepley,  military 
commandant  of  New  Orleans,  discharged  the  mayor's 
functions.^® 

The  next  fact  which  claims  our  notice  is  that  Union 
occupation  in  the  South  meant  the  inauguration  of  a 
military  regime.  The  will  of  the  commander  was  the 
law  of  the  occupied  region  and  the  civil  government  was 
subordinate  to,  if  not  directly  in  charge  of,  the  com- 
mander.^°     Often  the  commander's  will  expressed  itself 

''  C.  R.  Hall,  op.  cit.,  42-43. 

i'Parton,  Butler  at  New  Orleans,  291-298,  336. 

•"The  proclamation  of  General  Butler  on  assuming  control  at  New 
Orleans  made  it  clear  that  the  city  was  under  martial  law.  In  1864 
Butler  wrote:  "Now,  my  theory  of  the  law  martial  is  this — that  it  is 
a  well-known,  well-settled,  and  well-defined  part  of  the  common  law  of 
this  country,  received  by  us  from  England  and  recognized  in  its 
proper  place  by  the  Constitution,  and  that  proper  place  ...  is  in  the 
camp  and  garrison.  Now  the  best  definition  of  martial  law  that  I 
have  ever  heard  was  that  by  Sir  Arthur  Wellesley,  afterwards  Duke 


226  THE  CONSTITUTION  UNDER  LINCOLN 

in  severe  and  sweeping  orders.  Summary  arrests  were 
made;  -^  papers  were  suppressed;  land  was  condemned 
for  sanitary  purposes;  railroads  were  taken  over;  private 
houses  were  commandeered;  banks  were  forbidden  to 
give  out  Confederate  money;  ministers  were  appre- 
hended; --  church  sen'ices  were  closed;  public  assem- 
blages were  suppressed;  citizens  refusing  the  oath  were 
threatened  with  deportation;  property  was  seized  for 
confiscation,  and  many  other  extraordinary  things  were 

of  Wellington,  while  serving  in  Spain:  'The  will  of  the  Comdg.  Gen- 
eral exercised  according  to  the  principles  of  natural  equity.'  If  this 
be  so  ...  ,  then  all  civil  rights  and  governments  in  camp  and  garri- 
son where  martial  law  obtains  must  be  subservient  to  it,  and  there- 
fore permissive  only.  Thus  civil  government  may  well  exist  in  sub- 
ordination to  martial  law  controlling,  restraining  and  protecting  citi- 
zens, when  it  is  so  constituted  that  the  government  is  efficient  to 
the  end  desired.  When  it  cannot  do  that,  that  government  is,  like 
any  other  useless  thing,  to  be  cast  aside."  {Correspondence  of  B.  F. 
Butler,  I,  436;  IV,  579.) 

"Andrew  Johnson,  as  military  governor  of  Tennessee,  ordered  the 
summarj'  arrest  of  various  persons,  including  Richard  B.  Cheatham, 
mayor  of  Nashville;  Washington  Barrow,  William  G.  Harding  and 
John  Overton,  signers  of  the  militar>'  league  between  Tennessee  and 
the  Confederate  States,  and  Joseph  C.  Guild,  who  had  uttered  treason- 
able language.  On  May  12,  1862,  Johnson  sent  to  Col.  Parkhurst,  com- 
manding at  Murfreesboro,  a  list  of  twelve  names,  authorizing  him  to 
arrest  all  or  part  of  them  according  to  his  discretion.  They  were  all 
arrested,  held  for  a  few  days  as  hostages  to  guard  against  violent  acta 
on  the  part  of  residents  of  the  city,  and  then  released.  On  other  oc- 
casions Johnson  authorized  subordinates  to  make  arrests,  as  when  he 
wrote  to  Col.  Mundj'  in  command  at  Pulaski  authorizing  him  to  make 
such  arrests  as  he  deemed  proper  and  expedient.  (Johnson  Papers, 
XVII,  3848,  3869,  3880,  3889,  3996;  XIX,  4362,  4379;  XX,  4486,  4493; 
XXI,  4693.) 

"Andrew  Johnson  WTote  in  Jul}',  1862,  to  Governor  Morton  of  Indi- 
ana, saying:  "Some  time  since  about  half  a  dozen  rabid  secession 
preachers  of  this  city  [Nashville]  were  arrested  by  my  direction  and  are 
now  in  prison  here."  He  wanted  some  of  them  sent  to  some  camp  or 
prison  in  Indiana.  A  similar  letter  was  sent  to  Governor  Tod  of 
Ohio,  while  General  Hovcy  at  Memphis  was  asked  to  send  some  of 
the  preachers  beyond  the  Southern  lines  and  General  Boyle  at  Louis- 
ville was  a.'^ked  to  confine  others.  Whether  the  number  of  clergymen 
was  sufficient  to  go  round  does  not  appear.  After  brief  imprisonment 
they  were  released  on  parole.  (Johnson  Papers,  Vols.  XXIII,  XXIV, 
XXVI,  passim.) 


OCCUPATION  OF  THE  SOUTH  227 

done,  more  commonly  for  the  preservation  of  order,  but 
sometimes  out  of  mere  caprice  or  a  sense  of  irritation. 
The  needlessly  severe  action  of  General  Butler  in  bring- 
ing about  the  execution  of  Mumford  for  tearing  down 
the  flag  at  New  Orleans,-^  and  the  unfortunate  "woman 
order"  issued  by  that  general,-*  are  examples  of  the  limits 
to  which  military  power  may  extend  when  a  commander 
plays  the  Avenging  Deity  among  a  proud  and  resisting 
population.  Legally,  the  importance  of  these  extreme 
acts  lies  in  the  fact  that  they  show  what  military  gov- 
ernment involved.  They  exemplify  the  extent  to  which 
the  city  of  New  Orleans  was  subjected  to  the  eccentric 
will  of  General  Butler.  Even  if  we  concede  that,  in  the 
main,  this  will  was  exerted  for  salutary  purposes  ^^ — 
such  as  the  maintenance  of  order,  the  reduction  of  dis- 
ease and  the  relief  of  the  poor — yet  the  occasional  acts 
of  harshness  showed  how  real  was  the  military  dictator- 
ship under  which  the  people  lived. 

The  legitimacy  of  this  military  rule  was  sustained  by 
the  Supreme  Court.  In  United  States  vs.  Diekelman 
the  court  held  that  martial  law  prevailed  in  Louisiana 
under  the  Butler  regime,  that  this  law  was  administered 
by  the  general  of  the  army  and  that  it  was,  in  fact,  his 
will.    Though  arbitrary,  it  had  to  be  obeyed.^^ 

Another  characteristic  feature  of  L^nion  control  in  the 
South  was  confusion  of  authority.  Taking  Louisiana  as 
an  example,  we  find  the  forces  of  occupation  under  Gen- 

•"Parton,  Butler  at  New  Orleans,  Ch.  xix. 

'*Ibid.,  Ch.  x\'iii. 

"James  Parton  defended  Butler's  course  at  New  Orleans  and  de- 
scribed him  as  a  man  of  brains,  practical  sense,  courage,  honesty, 
humor,  faith,  humanity,  courtesy  and  patriotism.  On  the  other  hand, 
President  Jefferson  Davis  proclaimed  him  an  outlaw,  and  he  has  per- 
haps been  more  generally  denounced  by  Southern  writers  than  any 
other  Union  general.  For  a  scholarly  account,  censuring  Butler,  see 
J.  R.  Ficklen,  History  of  Reconstruction  in  Louisiana. 

"92  U.  S.  520,  526. 


228  THE  CONSTITUTION  UNDER  LINCOLN 

cral  Butler  (and  later  General  Banks),  the  military  gov- 
ernorship of  Louisiana,  the  city  and  county  oflSces,  the 
judicial  establishment,  the  foreign  consulates  and  the 
customs-house  departments  confronting  each  other  in 
their  daily  activities  with  imperfect  understanding  of 
their  respective  jurisdictions,  and  producing  not  a  little 
friction  by  the  contact. 

While  Butler  was  heading  his  letters  "Department  of 
the  Gulf,"  and  signing  his  name  "Benj.  F.  Butler,  Major 
General  Commanding,"  George  F.  Shepley,  of  inferior 
military  rank,  was  made  "Military  Governor  of  Louisi- 
ana." ^'^  The  line  of  demarcation  between  the  authority 
of  Butler  and  that  of  Shepley  seems  not  to  have  been 
clearly  drawn. 

A  sort  of  dual  government  existed  in  Tennessee.  As 
C.  R.  Hall  shows  in  his  study  of  Johnson's  governorship, 
Rosecrans,  with  the  rank  of  Major  General,  was  com- 
mander of  the  department  and  head  of  an  important 
active  army;  while  Johnson,  a  Brigadier  General,  was 
military  governor  of  the  State.^^  It  might  have  been 
supposed  that  Rosecrans  would  wield  the  paramount 
military  command,  leaving  Johnson  in  general  charge  of 
the  civil  administration.  Even  the  civil  government, 
however,  was  under  military  control,  so  that  Johnson 
was  as  truly  in  possession  of  military  authority  as  was 
Rosecrans;  while  the  latter,  being  a  superior  officer,  and 
the  general  in  command  of  the  army,  assumed  the  chief 
responsibility,  and  took  such  control  of  civil  matters  as 
to  thwart  Johnson's  purposes  in  many  respects.  Against 
the  complaints  of  Johnson,  Rosecrans  maintained  a 
"detective  police"  ^^  whose  inquisitorial  and  summary 

"  Correspondence  of  B.  F.  Butler,  II,  59. 

"Hall,  Andrew  Johnson,  Military  Governor  of  Tenn.,  75  et  seq. 
(The  writer  has  drawn  largely  from  this  scholarly  volume  in  studying 
the  situation  in  Tennessee.) 

"Ibid.,  pp.  78-83. 


OCCUPATION  OF  THE  SOUTH  229 

methods  caused  serious  protest,  and  the  intervention  of 
General  Halleck  at  Washington  became  necessary  in 
order  to  sustain  the  civil  authority  under  Johnson. 

What  we  have  seen  in  Louisiana  and  Tennessee  was 
but  typical  of  Union  rule  in  the  South, ^*^  Orders  from 
Washington  were  never  adequate  and  much  was  left  to 
the  will  of  individual  generals.  In  the  turbulent  condi- 
tions of  the  time,  with  guerrillas  to  be  suppressed,  cotton 
to  be  seized,  negroes  to  be  controlled  under  the  novel 
conditions  of  freedom,  disloyal  activities  to  be  put  down, 
secret  societies  to  be  stamped  out,  and  a  hundred  other 
problems  to  be  faced,  it  was  natural  that  many  irregu- 
larities would  arise.  With  the  breakdown  of  regular 
civil  government,  and  the  extraordinary  extension  of 
the  limits  of  military  rule,  an  orderly  conduct  of  affairs 
was  not  to  be  expected. 


The  administration  of  justice  in  the  occupied  districts 
presented  many  complications.  A  careful  examination 
of  the  details  of  this  subject  shows  that  in  this  as  in 
other  respects  the  conquered  regions  were  under  the  will 
of  the  President  and  the  military  authorities.  In  gen- 
eral, the  performance  of  judicial  functions  in  the  invaded 
regions  proceeded  along  the  following  lines: 

1.  Owing  to  the  supremacy  of  the  military  power,  all 
judicial  functions  were  exercised  under  executive  control. 

2.  The  Federal  judicial  power  was  provided  for  in  part 
by  the  reopening  of  United  States  courts  and  in  part  by 
conferring  Federal  jurisdiction  upon  specially  created 
courts.  Members  of  the  Federal  Supreme  Court  did  not 
perform  circuit  duties  during  military  occupation  and 

**An  aggravated  case  of  military  interference  in  matters  of  civil 
government  occurred  at  Norfolk  in  1864.    Injra,  pp.  46d-469.. 


230  THE  CONSTITUTION  UNDER  LINCOLN 

the  performance  of  Federal  judicial  functions  was  other- 
wise abnormal. 

3.  The  army  was,  of  course,  subject  to  the  power  of 
the  courts-martial.  When  the  Federal  forces  were  in 
the  "enemy's  country,"  the  courts-martial  had  exclusive 
jurisdiction  over  offenses  of  every  grade  committed  by 
persons  in  the  military  service.  A  soldier  of  the  United 
States  who  committed  murder  in  Tennessee  while  that 
State  was  under  Federal  occupation,  was  not  subject  to 
prosecution  by  State  tribunals.^^ 

4.  A  military  regime  existed  in  the  occupied  regions 
and  this  gave  great  importance  to  the  military'  commis- 
sions. These  tribunals  had  cognizance  of  a  variety  of 
offenses  against  the  military  power  of  which  non-com- 
batants might  often  be  guilty,  especially  in  a  district 
harassed  by  bandits  or  bushwhackers.  Civilians  were 
tried  by  these  military  courts  for  robbery,  theft,  arson, 
murder,  and  various  other  crimes.^^ 

5.  As  to  ordinary--  criminal  and  civil  justice,  no  simple 
statement  suffices.  The  recognized  rule  in  such  cases  is 
to  permit  the  local  courts  to  continue  their  functions. 
Local  police  matters  should  properly  have  been  left  to 
the  civil  authorities,  while  the  provost  marshal's  duties 
were  limited  to  matters  of  military  police.  Sometimes 
the  existing  local  courts  were  continued,^^  but  there  were 
important  cases  where  "special  war  courts"  were  created 
by  military  order  for  the  exercise  of  ordinary  civil  and 
criminal  jurisdiction.  The  Supreme  Court  sustained  the 
military  power,  and  thus,  of  course,  the  executive  power, 

"  Coleman  vs.  Tennessee,  97  U.  S.  509. 

"Hall,  op.  cit.,  45-46;  Halleck's  instructions  to  Rosccrans,  March  20, 
1863:     0.  R.,  Ser.  Ill,  Vol.  3,  pp.  77-78. 

"  In  middle  Tennessee  the  local  courts  were  permitted  to  operate 
under  military  protection,  and  Governor  Johnson  did  not  even  pres3 
the  requirement  of  an  oath  of  loviiltv  upon  the  judges.  (Hall,  op.  cit., 
p.  45.) 


OCCUPATION  OF  THE  SOUTH  231 

in  the  wide  assumption  of  judicial  authority  which  the 
maintenance  of  these  special  courts  involved. 

We  may  now  turn  to  an  examination  of  some  of  these 
special  war  courts.  At  Memphis  three  military  com- 
missions were  set  up,  each  wuth  a  different  sort  of  juris- 
diction.^^ There  was,  in  the  first  place,  a  military  com- 
mission of  the  usual  sort  which  dealt  with  offenses  of  a 
military  character  which  were  not  appropriate  to  courts- 
martial.  Theft  of  militaiy  stores  by  a  civihan  would  be 
an  example.  In  the  second  place,  a  military  commission 
was  organized  to  take  cognizance  of  criminal  cases  of  a 
non-military  sort;  while  still  a  third  commission,  called 
a  "civil  commission"  but  military  in  management  and 
control,  had  charge  of  civil  cases. 

The  same  principle  was  illustrated  in  Louisiana  and 
it  was  there  that  the  most  remarkable  of  the  special  war 
courts  existed.  Pressed  with  numerous  claims  of  for- 
eigners in  New  Orleans,  the  State  Department  urged  the 
necessity  of  creating  a  tribunal  to  decide  cases  that  might 
otherwise  produce  international  complications;  and  in 
October,  1862,  President  Lincoln  created  a  "provisional 
court  for  Louisiana."  ^^  In  the  executive  order  creating 
this  court  the  President  assumed  far-reaching  judicial 
power.  The  provisional  judge  was  given  authority  "to 
hear,  try  and  determine  all  causes,  civil  and  criminal, 
including  causes  in  law,  equity,  revenue,  and  admiralty, 
and  particularly  all  such  powers  and  jurisdiction  as  be- 
long to  the  district  and  circuit  courts  of  the  United 
States";  and  his  decision  was  made  "final  and  conclu- 
sive."   Judge  Charles  A.  Peabody,  who  was  given  this 


**Hall,  op.  cit.,  pp.  131-133;  Birkhimer,  Military  Government  and  Mar- 
tial Law,  143  et  seq. 

"Ann.  Cyc,  1863,  pp.  586  et  seq.;  Am.  Hist.  Ass.  An.  Rep.,  1892, 
pp.  199-210;  G.  B.  Davis,  Military  Law,  303  et  seq.;  Birkhimer,  op.  cit., 
pp.  146-152. 


232  THE  CONSTITUTION  UNDER  LINCOLN 

unique  judgeship,  declared  that  the  power  of  his  court 
"would  seem  to  be  the  unlimited  power  of  determining 
every  question  that  could  be  the  subject  of  judicial  de- 
cision," ^®  The  court  had  at  its  command  the  entire 
physical  force  of  the  United  States  wdthin  the  depart- 
ment, both  afloat  and  ashore,  and  its  process  even  pene- 
trated the  enemy's  lines. 

When  the  validity  of  his  court  was  questioned  Judge 
Peabody  issued  a  decision  explaining  the  basis  of  its 
authority.  The  court,  he  declared,  rested  upon  the  law 
of  nations,  its  formation  being  within  the  rights  con- 
ceded to  a  belligerent  in  conquered  territory.  The  Gov- 
ernment of  the  United  States,  ''having  conquered  and 
expelled  from  .  .  .  Louisiana  the  power  by  which  the 
government  of  it  had  been  theretofore  administered,  and 
having  established  there  its  own  power,  was  bound  by 
the  laws  of  war,  as  well  as  the  dictates  of  humanity, 
to  give  to  the  territory  thus  bereft  a  government  in  the 
place  ...  of  the  one  deposed."  ^'^  The  authority  of  the 
court,  said  the  judge,  was  derived  from  the  President 
who  created  it.  Though  it  was  admitted  that  in  ordi- 
nary times  the  President  could  not  create  courts  in 
this  manner,  his  authority  to  do  this  in  time  of  war 
was  held  to  be  analogous  to  the  exercise  of  other  bellig- 
erent rights  by  the  commander-in-chief. 

The  power  of  the  President  to  estabhsh  this  court 
in  Louisiana  was  sustained  by  the  Supreme  Court  in 
various  decisions.  The  duty  of  maintaining  govern- 
ment and  administering  justice  in  occupied  territory, 
was  described  as  "a  military  duty,  to  be  performed  by 
the  President  as  commander-in-chief,  and  intrusted  as 
such  with  the  direction  of  the  military  force  by  which 

"Am.  Hist.  Ass.  An.  Rep.,  1892,  p.  204. 

"  U.  S.  vs.  Rcitcr  and  U.  S.  vs.  Louis,  reported  in  Ann.  Cyc,  1864, 
pp.  481-482. 


OCCUPATION  OF  THE  SOUTH  233 

the  occupation  was  held."  ^^  The  executive  right  of 
setting  up  special  courts  for  the  trial  of  civil  cases  was 
sustained  as  "the  exercise  of  the  ordinary  rights  of 
conquest."  ^^ 

The  constitutional  provision  vesting  the  judicial  power 
of  the  United  States  "in  one  Supreme  Court  and  in 
such  inferior  courts  as  the  Congress  may  .  .  .  estab- 
lish" ^^  was  urged  as  a  prohibition  upon  special  war 
courts  created  by  executive  authority  and  clothed  with 
civil  as  well  as  criminal  jurisdiction.  That  clause  of 
the  Constitution,  however,  was  declared  to  have  "no 
application  to  the  abnormal  condition  of  conquered  ter- 
ritory," but  to  refer  "only  to  the  courts  of  the  United 
States,  which  military  courts  are  not."  ^^  Not  only  was 
the  "provisional  court  of  Louisiana,"  which  was  created 
by  the  President's  order,  sustained  on  this  principle, 
but  an  earUer  court,  called  the  "provost  court,"  brought 
into  existence  simply  by  General  Butler's  order,  was 
also  sustained  on  the  ground  that  Butler's  acts  were 
the  acts  of  the  President. 

There  were  those  who  believed  that  this  presidential 
justice,  which  in  its  actual  operation  meant  in  reality 
"provost-marshal  justice"  or  "military-governor  jus- 
tice," was  carried  too  far.  Speaking  of  certain  acts  of 
General  Butler  in  Virginia,  infringing  upon  the  judicial 
power  of  the  "restored"  State  government.  Attorney 
General  Bates  said,  "I  have  heretofore  forborne  too 
much,  to  avoid  a  conflict  of  jurisdiction,  but  it  only 

*The   Grapeshot,  9   Wall.   129,   132. 

"  "Thus  it  hag  been  determined  that  the  power  to  establish  by  mili- 
tary authority  courts  for  the  administration  of  civil  as  well  as  criminal 
justice  in  portions  of  the  insurgent  States  occupied  by  the  National 
forces,  is  precisely  the  same  as  that  which  exists  when  foreign  territory 
has  been  conquered  and  is  occupied  by  the  conquerors."  (Mechanics' 
Bank  vs.  Union  Bank  of  La.,  22  Wall.  276,  296.) 

*°  U.  S.  Constitution,  Art,  III,  660.  1. 

*'22  Wall.  295. 


234   THE  CONSTITUTION  UNDER  LINCOLN 

makes  the  military  usurper  more  bold  and  insolent. 
Hereafter,  in  open,  gross  cases,  I  will  press  the  matter 
to  issue."  ^2  When,  in  1867,  Chief  Justice  Chase  ad- 
dressed the  bar  at  the  time  of  the  reopening  of  the  Fed- 
eral court  in  North  Carolina,  he  explained  why  the 
members  of  the  Supreme  Court  had  not  come  into  the 
State  sooner  in  the  discharge  of  their  circuit  duties.  All 
the  courts,  he  said,  had  been  for  a  considerable  period 
subordinated  to  military  supremacy,  and  the  military 
tribunals  had  enjoyed  an  unusual  extent  of  jurisdiction. 
Under  such  circumstances  he  thought  it  would  not  be 
fitting  that  the  highest  judicial  officers  of  the  land  should 
exercise  their  jurisdiction  under  the  supervision  and  con- 
trol of  the  executive  department.^^ 

VI 

What  was  the  constitutional  basis  for  the  abnormal 
governments  of  occupation  in  the  South?  There  were 
some  who  would  have  justified  Federal  assumption  of 
temporary  governmental  powers  in  the  occupied  States 
on  the  basis  of  the  "guarantee  clause" — the  clause  by 
which  the  States  are  guaranteed  a  republican  form  of 
government,  and,  for  the  preservation  of  such  a  gov- 
ernment, are  protected  against  domestic  violence  and 
invasion.^^  To  afford  this  protection.  Federal  power 
may  be  used  within  a  State.  The  people  of  the  South 
were  not  aware  of  their  unrepublican  tendencies,  but 
the  Union  authorities  considered  them  to  be  under  a 


"  MS.  Diary  of  Edward  Bates,  Aur.  20.  1864. 

*"  Whiting,  War  Powers  wider  the  Constitution,  596-597.  On  October 
13,  1865,  Chase  wrote  to  President  Johnson  advising  against  the  hold- 
ing of  the  United  States  Circuit  Court  in  Virginia  until  military  au- 
thority should  be  superseded  by  the  civil.  (Johnson  Papers,  Vol.  79, 
No.  7354.) 

**{/.  S.  Constitution,  Art.  IV,  sec.  4. 


OCCUPATION  OF  THE  SOUTH  235 

"pretended  goverament"  maintained  by  a  "slave  aris- 
tocracy." 

It  is  of  interest  to  notice  that  President  Lincoln 
was  explicit  in  citing  the  guaranty  clause  as  a  jus- 
tification for  the  military  occupation  of  Tennessee. 
Writing  in  September,  1863,  to  Governor  Andrew  John- 
son, he  said:  ^^ 

.  .  .  you  are  hereby  authorized  to  exercise  such  powers  as 
may  be  necessary  and  proper  to  enable  the  loyal  people  of 
Tennessee  to  present  such  a  republican  form  of  State  govern- 
ment as'  will  entitle  the  State  to  the  guaranty  of  the  United 
States  therefor,  and  to  be  protected  under  such  State  govern- 
ment by  the  United  States  against  invasion  and  domestic 
violence,  all  according  to  the  fourth  section  of  the  fourth 
article  of  the  Constitution  of  the  United  States. 

Had  the  occupied  districts  been  deemed  to  be  within 
the  country  and  under  the  operation  of  the  Constitu- 
tion, the  guaranty  clause  might  well  have  been  made 
the  basis  of  Federal  intervention  in  local  affairs.  The 
Supreme  Court,  however,  upheld  the  occupation,  not 
on  the  basis  of  the  guaranty  clause,  but  on  the  principle 

«Nicolay  and  Hay,  Works,  IX,  127;  0.  R.,  Ser.  Ill,  Vol.  3,  pp.  789, 
819.  Lincoln's  statement  to  Johnson  was  sent  in  response  to  a  tele- 
gram from  the  latter  asking  for  such  a  statement.  (Stanton  Papers, 
XIV,  No.  52987.)  Johnson's  appeal  of  March  18,  1862,  to  the  people 
of  Tennessee  was  in  the  same  spirit.  Refemng  to  the  disappearance  of 
State  government,  the  abandonment  of  the  ship  of  state,  the  desecration 
of  the  archives  and  the  seizure  of  public  property,  he  declared  that 
"the  Government  of  the  United  States  could  not  be  unmindful  of  its 
high  constitutional  obligation  to  guarantee  to  every  State  ...  a  repiib- 
lican  form  of  Government,"  adding  that  his  purpose  in  Tennessee  was, 
"as  speedily  as  may  be,  to  restore  her  government  to  the  same  con- 
dition as  before  the  existing  rebellion."  (C.  R.  Hall,  Andrew  Johnson, 
Military  Governor  of  Tennessee,  39;  Johnson  Papers,  XVI,  No.  3725  a.) 
Johnson's  action  as  President  in  appointing  provisional  governors  in  the 
Southern  States  in  1865  was  also  based  on  the  guaranty  clause. 
(Richardson,  Messages  .  .  .  oj  the  Presidents,  VI,  314.) 


236  THE  CONSTITUTION  UNDER  LINCOLN 

of   conquest.     In   Coleman  vs.    Tennessee   the   Court 
said:  *^ 

The  doctrine  of  international  law  on  the  effect  of  military 
occupation  of  enemy's  territory  upon  its  former  laws  is  well 
established.  Though  the  late  war  was  not  between  inde- 
pendent nations,  but  between  different  portions  of  the  same 
nation,  yet  having  taken  the  proportions  of  a  territorial  war, 
the  insurgents  having  become  formidable  enough  to  be  recog- 
nized as  belligerents,  the  same  doctrine  must  be  held  to  apply. 
The  right  to  govern  the  territory  of  the  enemy  during  its 
military  occupation  is  one  of  the  incidents  of  war  .  .  .  ;  and 
the  character  and  form  of  the  government  to  be  established 
depend  entirely  upon  the  laws  of  the  conquering  State  or  the 
orders  of  its  military  commander. 

This  application  of  the  conquest  theory,  it  should  be 
noted,  gave  the  occupied  districts  of  the  South  a  mih- 
tary  regime  such  as  the  North  did  not  have.  In  the 
Milligan  case  the  establishment  of  a  military  regime  in 
Indiana  was  declared  illegal;  but  such  a  regime  existed 
in  Louisiana,  Tennessee,  Virginia,  and  other  occupied  re- 
gions. It  existed  also,  it  is  true,  in  those  districts  where 
martial  law  was  established  in  the  North,  as  in  Ken- 
tucky and  Missouri, ^'^  But  in  these  Northern  districts 
military  rule  was  declared  to  be  justified  because  of 
the  prevalence  of  bushwhacking,  because  of  invasion,  or 
for  other  reasons  which  would  make  martial  law  ap- 
propriate, while  such  rule  in  the  South  w-as  sustained 
simply  on  the  ground  of  conquest.  The  Supreme  Court's 
decision  denouncing  the  military  commission  which  con- 
demned MiUigan  did  not  affect  the  validity  of  that  under 
which  Mumford  was  executed;  for  in  such  a  matter 
Louisiana  w^as  held  to  be  subject  to  a  different  law  from 
that  prevailing  in  Indiana. 

**97  U.  S.  509,  517. 

*' -Supra,  Chapter  VIII. 


OCCUPATION  OF  THE  SOUTH  237 

This  subject  of  military  occupation  naturally  blends 
into  the  subject  of  reconstruction,  which  is  not  treated 
in  this  book.  Though  Lincoln's  purpose  was  to  use 
military  occupation  as  a  way  of  setting  up  loyal  State 
governments,  thus  hastening  and  simplifying  the  restora- 
tion of  the  "proper  practical  relation"  of  the  States 
to  the  Union,^^  the  reversal  of  his  policy  by  the  radicals 
under  such  leaders  as  Sumner,  Stanton  and  Stevens  de- 
feated this  magnanimous  purpose;  and,  as  the  event 
proved,  the  military'-  occupation  was  unnecessarily  pro- 
longed after  the  war. 

Southern  territory,  in  general,  thus  passed  through  a 
series  of  governmental  stages,  and  the  following  condi- 
tions of  rule  may  be  noted:  (1)  Normal  Federal  and 
State  authority  existed  before  the  war.  (2)  Independ- 
ent State  authority  prevailed,  or  was  asserted,  between 
the  time  of  secession  and  entrance  into  the  Confed- 
eracy.^^ (3)  Confederate  and  State  authority  held  sway 
until  overthrown  by  Federal  force.  The  practical  valid- 
ity of  the  governments  of  the  individual  Southern  States 
and  even  of  the  "Confederate  States  of  America"  in  the 
ordinary  control  of  human  relations  was  upheld,  though 
they  were  declared  incapable  of  enforcing  any  right  as 
against  the  United  States.^''     (4)  Military  occupation, 

**"We  all  agree  that  the  seceded  States,  so  called,  are  out  of  their 
proper  practical  relation  with  the  Union,  and  that  the  sole  object  of 
the  Government,  civil  and  military,  in  regard  to  those  States,  is  to  again 
get  them  into  that  proper  practical  relation."  (President  Lincoln's 
last  public  address,  April  11,  1865:  Nicolay  and  Hay,  Lincoln,  IX, 
460.) 

^'This  statement  refers  particularly  to  those  States  which  seceded 
prior  to  the  Montgomery  convention  of  February,  1861,  in  which  the 
Government  of  the  Confederate  States  was  organized. 

^  Insurrection  and  war  do  not  loosen  the  bonds  of  society,  and  the 
Supreme  Court  treated  the  ordinary  acts  of  the  individual  Southern 
States  during  the  war  for  maintaining  police  regulations,  punishing 
crime,  protecting  property,  etc.,  as  valid  and  binding.  (Horn  vs. 
Lockhart,  17  Wall.  570.    See  also  6  Wall.  443;  7  Wall.  700;  20  Wall. 


238   THE  CONSTITUTION  UNDER  LINCOLN 

on  the  basis  of  the  laws  of  war  and  under  the  authority 
of  the  President,  succeeded  when  the  L'nion  forces  took 
possession.  (5)  During  the  period  of  confusion  that 
was  called  "reconstruction,"  military  government  was 
continued;  but  in  a  legal  sense  this  was  hardly  the 
same  thing  as  belligerent  occupation.  It  was  justified 
on  the  basis  of  a  variety  of  "theories  of  reconstruction," 
such  as  "State  suicide,"  "reversion  to  territorial  status," 
and  the  like.  (6)  After  the  completion  of  reconstruc- 
tion, normal  Federal  and  State  authority  was  resumed 
on  the  basis  of  an  amended  Constitution,  the  amend- 
ments having  been  made  in  the  period  of  confusion. ^^ 

459;  22  Wall.  99.)  In  Thorington  vs.  Smith  (8  Wall.  1)  the  Supreme 
Court  declared  the  Confederate  States  to  be  a  "government  of  para- 
mount force"  maintaining  a  supremacy  which  made  obedience  to  its 
authority,  in  civil  and  local  matters,  both  a  necessity  and  a  duty.  In 
this  case  a  contract  for  the  payment  of  Confederate  money  was  de- 
clared enforceable  in  the  courts  of  the  United  States. 

"  Governmental  obligations  of  the  Confederacy  were  extinguished  by 
the  Fourteenth  Amendment  of  the  Constitution  of  the  United  States, 
which  provided  that  "neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States  .  .  .  ;  but  all  such  debts  [and] 
obligations  .  .  .  shall  be  held  illegal  and  void."  The  United  States  did 
not  assume  the  role  of  the  "successor"  of  the  Confederate  States;  and  it 
would  be  inappropriate  to  discuss  the  conduct  of  the  Washington  Gov- 
ernment toward  the  extinguished  Confederacy  on  the  basis  of  those 
practices  of  international  law  which  pertain  to  "continuity  of  States," 
"State-succession,"  and  the  like.  It  is  the  successor-State  that  some- 
times (though  not  always)  assumes  the  obligations  of  its  predecessor; 
and  to  argue  that  the  United  States  should  have  taken  over  the  Con- 
federate debt  would  be  to  assume  that  the  Confederate  States  had 
existed  before  the  war  as  an  established  international  person,  and  had 
then  been  conquered  and  absorbed  by  the  United  States.  Even  then, 
prevailing  international  practice  would  have  suggested  that  Confederate 
debts  incurred  for  the  war  itself  should  not  be  assumed.  Historically, 
the  Confederacy  never  achieved  full  international  standing;  and  it  was 
treated  by  the  United  States  as  a  rival  and  contending  government 
which  sought  unsuccessfully  to  become,  as  to  the  South,  the  "suc- 
cessor" of  the  United  States.  The  defeat  of  such  a  rival  government 
did  not  amount  to  the  overthrow  or  absorption  of  an  existing  "State" 
in  the  international  sense.  As  to  the  principle  of  State-continuity,  it 
was  preserved  in  the  fact  that  the  United  States  was  not  supplanted  in 
its  control  over  the  South. 


CHAPTER  XI 

LEGAL   AND    CONSTITUTIONAL   BEARINGS    OF    CONSCRIPTION 

I.   American    tradition    and    American    law    regarding 
conscription  in  1861 
II.    Conscription  by  presidential  regulation  and  through 
State  authority  in  1862 

III.  Conscription  Law  of  1863 

IV.  Discretionary  power  of  the  President 
V.   Military  custody  over  drafted  men 

VI.  Use  of  State  militia  for  suppressing  draft  troubles 

VII.  The  conscientious  objector 

VIII.  Liability  of  aliens  under  the  draft 

IX.  Constitutionality  of  the  Conscription  Acts 


English  and  American  tradition  has  long  opposed  mili- 
tary conscription.  Back  of  this  opposition  there  is  a 
mental  attitude  which  has  been  bluntly  characterized  as 
the  Briton's  insistence  on  the  right  to  "do  what  he  likes, 
.  .  .  march  where  he  likes,  meet  where  he  likes,  .  .  . 
hoot  as  he  hkes,  threaten  as  he  likes,  smash  as  he 
likes,"  ^  but  it  may  perhaps  be  more  favorably  viewed 

*  Matthew  Arnold,  in  "Culture  and  Anarchy."  (Arnold,  Works  [Mac- 
millan,  London,  1903],  VI,  50.)  In  the  first  Agreement  of  the  People, 
1647,  a  paragraph  was  devoted  to  the  subject  of  conscription,  which 
was  declared  to  be  outside  the  powers  of  Parliament,  being  "reser\'ed 
by  the  represented  to  themselves."  The  second  paragraph  of  the  Agree- 
ment reads  as  follows:  "That  the  matter  of  impressing  and  constrain- 
ing any  of  us  to  serv^e  in  the  wars  is  against  our  freedom ;  and  there- 
fore we  do  not  allow  it  in  our  Representatives;  the  rather,  because 
money  (the  sinews  of  war),  being  always  at  their  disposal,  they  can 
never  want  numbers  of  men  apt  enough  to  engage  in  any  just  cause." 
(T.  C.  Pease,  The  Levelkr  Movement:  A  Study  in  the  History  and 
Political  Theory  of  the  English  Great  Civil  War,  p.  208.) 

239 


240   THE  CONSTITUTION  UNDER  LINCOLN 

as  a  manifestation  of  the  Anglo-Saxon's  sense  of  the 
sanctity  of  the  individual,  his  repugnance  to  outside 
coercion,  and  his  preference  for  the  inner  compulsion 
of  patriotism  as  a  motive  for  military  service. 

Michelet  referred  to  the  French  as  "a  nation  of  bar- 
barians civilized  by  the  conscription,"  -  suggesting  by 
this  exaggerated  phrase  the  idea  that  a  conception  of 
national  duty  and  a  habit  of  discipline  have  been  in- 
culcated through  military  service;  but  the  typical  Anglo- 
Saxon  has  always  been  reluctant  to  recognize  the  benefits 
of  compulsory  service  under  arms.  It  was  with  diflBi- 
eulty  that  conscription  was  adopted  in  England  a  year 
and  a  half  after  the  opening  of  the  World  War;  and 
even  then  the  exclusion  of  Ireland  indicated  that  the 
Government  preferred  not  to  carry  the  principle  to  its 
logical  extreme,  while  the  violent  opposition  to  com- 
pulsory servdce  in  Canada  and  the  decision  of  the  great 
Austrahan  commonwealth  to  rely  wholly  upon  volun- 
teering, emphasized  the  well-known  British  tradition. 
The  Selective  Service  Act  of  1917  in  the  United  States 
stands  out  as  a  surprising  triumph  of  the  Wilson  ad- 
ministration, and  as  the  one  example  in  all  American 
history  in  which  the  policy  of  universal  military  service 
proved  truly  successful. 

Prior  to  the  Civil  War  conscription  had  never  been 
applied  by  national  law.  During  the  Revolution  some 
of  the  States  filled  their  Continental  quotas  by  means 
of  the  draft, ^   and  a  conscription   law  was   considered 

'Quoted  by  Matthew  Arnold,  op.  cit.,  VI,  49.  Arnold  adds  that 
during  the  Crimean  War  the  manager  of  the  Clay  Cross  Works  in 
Derbyshire  informed  him  "that  sooner  than  submit  to  a  conscription, 
the  population  of  that  district  would  flock  to  the  mines  and  lead  a 
sort  of  Robin  Hood  life  underground."  See  also,  for  general  comment 
on  this  subject,  The  Independent,  Jan.  18,  1915. 

'  In  North  Carolina,  for  instance,  there  was  passed  in  May,  1778,  "An 
Act  for  Raising  Men  to  Complete  the  Continental  Battalions  belong- 
ing to  this  State"  which  provided  that  the  Continental  quota  for  the 


CONSCRIPTION  241 

during  the  War  of  1812;  but  the  opposition  of  New- 
England  and  the  failure  of  the  two  houses  of  Congress 
to  agree  caused  the  abandonment  of  the  measure.  For 
the  Mexican  War  the  army  was  fully  recruited  by  vol- 
untary enlistment. 

When  the  Civil  War  broke  out,  three  forms  of  mili- 
tary organization  had  become  definitely  established  by 
law  and  precedent:  the  regular  army,  the  ''volunteers," 
and  the  State  militia.  (1)  The  regular  army,  recruited 
by  voluntary  enlistment,  had  been  kept  within  narrow 
bounds  as  a  small,  though  highly  efl&cient,  peace  estab- 
lishment. In  the  spring  of  1861,  after  many  Southerners 
had  withdrawn,  it  numbered  about  13,000  men.  This 
might  be  called  the  normal  Federal  army.  (2)  In  case 
of  war,  the  recognized  method  of  expanding  the  na- 
tional forces  was  through  a  system  of  volunteering  for 
limited  periods  of  service.  In  contrast  to  the  regular 
army,  which  consisted  of  professional  soldiers,  these  vol- 
unteers were  merely  citizens  coming  to  their  country's 
defense  in  time  of  need  and  expecting  to  return  to  civil 
life  after  the  need  had  passed.  (3)  The  third  branch, 
the  militia,  deserves  more  particular  attention  in  con- 
nection with  the  subject  matter  of  this  chapter.  In 
keeping  with  that  peculiar  federal  system  which  char- 
acterizes the  American  republic,  the  militia  was  at  once 
a  State  and  a  Federal  organization.  The  miUtia  forces 
were  created  by  State  law;  their  ofl&cers  were  appointed 
under  State  authority;  and  their  services  were  at  the 
command  of  the  State  governor. 

But  the  "State  militia"  was  at  the  same  time  the 

State  should  be  raised  from  the  various  militia  companies  by  first 
making  a  call  for  volunteers,  for  whom  a  liberal  bounty  was 
offered;  and,  if  the  required  number  was  not  raised  by  this  means,  the 
companies  were  to  ballot  for  the  rest,  and  the  men  so  chosen  were 
compelled  to  go  or  provide  substitutes.  {N.  C.  Colonial  Records,  XIII, 
411.) 


242   THE  CONSTITUTION  UNDER  LINCOLN 

"uniform  militia,"  and  constituted  a  definite  part  of 
the  national  system  of  defense.  Its  organization  and 
discipline  were  prescribed  by  Congress;  the  arms  were 
supplied  by  the  Federal  Government;  and  the  Presi- 
dent had  the  constitutional  authority  to  call  them  out 
for  national  purposes.  The  militia  might  be  described 
as  a  reserve  force  under  State  control,  but  invested  with 
a  national  character  and  available  for  extraordinary  na- 
tional uses. 

A  series  of  Federal  laws  had  been  passed  with  the 
intention  of  making  the  militia  a  really  effective  agency 
of  the  Federal  Government.  The  first  of  these  laws  was 
that  of  May  8,  1792,  which  provided  (indirectly)  for 
the  enrollment  of  "every  free  able-bodied  white  male 
citizen  of  the  respective  States"  ^  between  the  ages  of 
eighteen  and  forty-five,  and  then  proceeded  to  indicate 
a  plan  of  organization  (which  the  State  legislatures 
were  to  carry  into  effect)  and  to  prescribe  the  rules 
of  disciphne  to  be  observed.  Another  act  of  1792," 
superseded  in  1795,^  carried  important  provisions  for 
calling  forth  the  militia  for  those  distinctly  Federal  pur- 
poses which  the  Constitution  contemplated:  executing 
the  laws  of  the  Union,  suppressing  insurrections,  and 
repelling  invasions.  This  act  provided  that,  whenever 
the  laws  of  the  United  States  should  be  opposed  in 
any  State  by  "combinations  too  powerful  to  be  sup- 
pressed by  the  ordinary  course  of  judicial  proceedings," 
the  President  might  use  the  State  militia  to  put  down 
such  combinations.  Other  laws  had  been  passed  '^  which 
indicate  that  it  was  the  intention  of  Congress  to  make 


*  U.  S.  Stat,  at  Large,  I,  271.     (A  constitutional  definition  of  Federal 
citizenship   did  not   then   exist.) 
*Ibid.,  I,  264. 
'Ibid.,  1,  424. 
'Ibid.,  I,  119,  403,  522,  576;   II,  207. 


CONSCRIPTION  243 

the  militia  an  actual,  and  not  merely  a  nominal,  part 
of  the  national  forces. 

An  examination  of  these  laws  will  present  two  con- 
siderations giving  the  militia  a  special  significance  in 
1861.  In  the  first  place,  it  will  be  noticed  that  the 
emergency,  as  interpreted  by  the  Lincoln  administra- 
tion, was  precisely  that  for  which  the  use  of  militia  had 
been  expressly  authorized.  To  execute  the  laws,  to  sup- 
press an  insurrection,  to  put  down  combinations  too 
powerful  for  judicial  methods — these  were  the  purposes 
for  which  the  Government  needed  troops.  In  the  sec- 
ond place,  the  militia  was  a  universal  organization, 
comprising  (roughly)  all  white  males  of  military  age. 

Why,  then,  did  not  the  Government  use  the  militia — 
an  instrument  already  existing  under  the  law — as  the 
means  of  expanding  the  army,  instead  of  calling  for  vol- 
unteers and  later  resorting  to  conscription?  In  part, 
of  course,  the  answer  is  that  the  militia  was  used.  The 
first  appeal  for  troops,  President  Lincoln's  proclama- 
tion of  April  15,  1861,  called  for  75,000  "militia,"  and 
the  wording  of  the  proclamation  conformed  to  the  militia 
law  of  1795  under  whose  authority  the  call  was  made.^ 
Approximately  80,000  troops  were  raised  under  this  call.^ 

In  prosecuting  a  serious  war  of  large  proportions, 
however,  the  militia  system  proved  inadequate.  The 
fact  was  that  the  "militia  of  the  United  States"  had 
hardly  more  than  a  paper  existence  in  1861.  The  actual 
organization  under  the  uniform  law  of  Congress  had  been 


'  U.  S.  Stat,  at  Large,  XII,  1258.  In  Lincoln's  message  to  the  special 
session  of  Congress,  July  4,  1861,  he  referred  to  all  three  branches  of 
the  military  ser\-ice.  "At  first,"  he  said,  "a  call  was  made  for  75,000 
militia.  .  .  .  Other  calls  were  made  for  volunteers  to  serve  three  years 
.  .  .  ,  and  also  for  large  additions  to  the  Regular  Army."  (Richardson, 
Messages  .  .  .  of  the  Presidents,  VI,  24.) 

•Report  of  the  Secretary  of  War,  July  1,  1861:  Sen.  Ex.  Doc.  No.  1, 
37  Cong.,  1  sess.,  p.  21, 


244  THE  CONSTITUTION  UNDER  LINCOLN 

left  to  the  States,  and  they  had  neglected  in  many  cases 
to  make  the  militia  a  living,  effective  force.  The  pro- 
vision for  giving  the  State  governors  the  appointing  of 
officers  was  unsatisfactory'  from  the  national  standpoint, 
while  the  three  months'  limitation  offered  a  further 
difficulty. 

In  the  second  call  for  troops,  that  of  May  3,  1861,^° 
the  militia  was  not  asked  for,  but  the  President  re- 
quested volunteers  for  three  years  together  with  addi- 
tions to  the  regular  army  and  navy.  The  President  ad- 
mitted that  this  call  was  made  without  authority  of 
law,^^  in  the  expectation  of  later  ratification  by  Con- 
gress. This  ratification  was  cheerfully  given  ^-  and  from 
this  time  on,  the  volunteers  made  up  the  major  part  of 
the  forces  which  sustained  the  Union. 


n 

It  might  have  been  supposed  that  the  transition  from 
the  militia  system  to  the  volunteering  system,  which 
was  thus  made  so  early  by  the  Lincoln  administration, 
would  have  eclipsed  the  militia  once  for  all  as  a  Fed- 
eral instrument  for  conducting  the  war.  This,  how- 
ever, was  not  the  case.  On  July  17,  1862,  Congress 
passed  a  halting  and  poorly  devised  measure  which 
proved  to  be  the  basis  for  conscription  as  first  used 
during  the  Civil  War.^^  This  law  "amended"  the  stat- 
ute of  February  25,  1795,  and  provided  that  whenever 
the  President  should  call  the  militia  into  Federal  serv- 
ice he  might  specify  the  period  of  such  sendee  (not  to 

"Nicolay  and  Hay,  Works,  VI,  263. 

"  Message  to  Congress,  July  4,  1861 :  Nicolay  and  Hay,  Works,  VI, 
308. 

"Supra,  p.  55. 

"The  "Militia  Act  of  1862"  seem?  the  best  designation  for  this 
measure:     U.  S.  Stat,  at  Large,  XII,  597. 


CONSCRIPTION  245 

exceed  nine  months)  and  might  issue  rules  to  cover 
defects  in  State  laws  to  provide  for  enrolling  the  militia 
and  putting  the  act  into  execution.  All  male  citizens 
between  the  ages  of  eighteen  and  forty-five  were  in- 
cluded, and  the  apportionment  among  the  States  was  to 
be  according  to  population.  Volunteers  for  this  service 
were  to  be  accepted  and  rewarded  with  bounties.  On 
August  4,  1862,  this  act  was  applied  when  President 
Lincoln  ordered  a  "draft"  of  300,000  militia,  with  quotas 
assigned  to  the  States.^* 

It  is  interesting  as  a  matter  of  legal  history  to  ponder 
the  method  by  which  conscription  was  authorized  in 
1862.  The  law  of  that  year  did  not  expressly  provide 
conscription.  Compulsory  service  could  be  read  into  the 
act  in  only  two  ways:  first,  the  President's  authority 
to  issue  regulations  could  be  (and,  in  fact,  was)  con- 
strued to  include  the  power  of  ordering  a  draft;  and 
second,  the  provision  that  the  militia  "shall  include  all 
male  citizens  between  the  ages  of  eighteen  and  forty- 
five"  involved  universal  military  liability.  This  latter 
provision,  however  (at  least  as  far  as  white  citizens 
were  concerned),  was  included  in  the  Act  of  1792  and 
had  long  been  a  part  of  established  law.  So  far  as  the 
militia  was  concerned,  the  nominal  principle  of  univer- 
sal liability  already  existed,  and  Congress  was  merely 
taking  advantage  of  this  fact.  It  was  applying  con- 
scription by  the  line  of  least  resistance.  As  the  national 
legislature  was  not  ready  for  a  drastic  and  thorough 
conscription  law,  it  merely  employed  the  inefficient 
militia  system,  instead  of  creating  a  purely  national 
army;  and,  instead  of  providing  a  nation-wide  method 
of  conscription,  reliance  was  placed  upon  State  laws 

5*0.  R.,  Ser.  Ill,  Vol.  2,  p.  291.  A  statement  of  the  method  indi- 
cated in  executive  orders  for  the  application  of  conscription  under  the 
Militia  Act  of  1862  is  given  below,  pp.  252-253. 


246  THE  CONSTITUTION  UNDER  LINCOLN 

which  were  to  be  supplemented  by  presidential  regu- 
lations. 

When  carried  into  actual  practice,  the  Militia  Act 
of  1862  developed  all  the  defects  that  were  to  be  ex- 
pected from  such  a  measure.  Where  the  States  had 
their  own  systems  for  enrolling  and  drafting  the  militia, 
as  was  usually  not  the  case,  these  systems  were  to  be 
employed;  but  any  deficiencies  in  State  law  or  practice 
were  to  be  made  up  by  executive  regulations  from 
Washington.  The  system  actually  in  use  in  any  State, 
then,  might  have  rested  on  State  law,  on  plans  made 
by  the  governor,  or  upon  instructions  issued  by  the  War 
Department.  In  the  correspondence  on  the  subject  be- 
tween Governor  Morton  of  Indiana  and  Secretary  Stan- 
ton, it  appears  that  in  the  absence  of  any  State  law  on 
the  subject  Governor  Morton  devised  a  complete  scheme 
for  enforcing  the  act,  and  afterw^ard  received  "Order 
No.  99"  from  Washington,  containing  conflicting  regula- 
tions. He  was,  however,  informed  by  Stanton  that  the 
order  from  Washington  was  designed  only  as  a  guide 
where  no  system  existed,  and  that,  as  Morton's  plan 
was  particularly  adapted  to  the  local  needs,  it  was  to  be 
followed  instead  of  the  executive  order.^^ 

In  a  military  sense  this  law  of  1862  stands  condemned 
because  of  its  inefficiency.  Viewed  from  the  constitu- 
tional standpoint  it  is  chiefly  significant  as  an  applica- 


"  Morton's  plan  involved  the  appointment  of  a  commissioner  in  each 
county  and  a  deputy  commissioner  in  each  township,  the  actual  prepara- 
tion of  the  lists  to  be  in  the  hands  of  the  township  officials.  The  de- 
cision to  appoint  special  commissioners  instead  of  relying  upon  county 
sheriffs  was  due  to  the  unreliability  of  many  of  the  latter,  for  in 
Indiana  disaffection  W'as  a  serious  menace.  The  county  and  township 
officers  together  were  to  act  as  boards  for  determining  exemptions  and 
the  actual  draft  was  to  be  supervised  by  the  county  commissioners. 
On  October  6,  1862,  a  draft  was  conducted  in  Indiana  on  this  basis. 
(Foulke,  Life  oj  Oliver  P.  Morton,  I,  198;  W.  H.  H.  Terrell,  Report 
oj  the  Adjutant  General  oj  Indiana,  I,  40  et  seq.) 


CONSCRIPTION  247 

tion  of  conscription  on  a  large  scale  by  the  very  mini- 
mum of  statutory  provision.  In  other  words,  the  act 
demonstrated  how  little  had  to  be  done  in  American 
law  in  1862  to  produce  at  least  one  form  of  conscrip- 
tion— that  is,  the  liability  attaching  to  the  "militia."  ^® 
It  was  a  conscription  law  without  a  conscription  clause. 
The  all-inclusiveness  of  the  militia  was  the  essential  prin- 
ciple upon  which  the  law  rested,  and  that  principle  had 
existed  from  the  time  of  Washington's  presidency.  The 
law  was  a  transitional  step  in  the  direction  of  more 
complete  national  conscription  and,  as  we  shall  see,  it 
gave  rise  to  difficulties  in  the  courts.^"^  The  insufficiency 
of  this  half-way  measure  indicates  that  Congress  had 
not  yet  arrived  at  an  attitude  of  assurance  and  deter- 
mination in  the  matter  of  compulsory  service. 

Ill 

The  drastic  act  of  March  3,  1863,  was  of  quite  a  dif- 
ferent sort.^^  It  specifically  provided  universal  liability 
for  service  in  the  national  army,  no  reference  being  made 
to  the  militia,   and   established  complete  Federal  ma- 

"The  nature  and  purpose  of  the  Militia  Act  of  1862  may  be  inferred 
from  the  following  statement  of  Senator  Wilson  of  Massachusetts  at 
the  time  of  its  consideration:  "This  bill  contemplates  drafting  from 
the  body  of  the  militia  of  the  country  a  force  sufficient  to  support  the 
country.  [It]  contemplates  calling  out  the  militia  in  case  we  fail 
to  obtain  the  number  of  men  required  by  the  present  system  of  volun- 
teering. It  provides  that  the  President,  if  he  calls  the  militia,  shall 
not  be  limited  to  the  time  specified  in  existing  laws,  but  may  fix 
the  time."  {Cong.  Globe,  37  Cong.,  2  sess.,  p.  3202.  This  law,  says 
General  Emory  Upton,  "reads  like  a  chapter  from  the  Journals  of 
the  Continental  Congress  during  the  darkest  days  of  the  Revolution," 
and  he  adds  that  in  passing  the  measure  Congress  was  returning  to  the 
"impotent  and  extravagant"  policy  which  had  led  in  the  past  to 
serious  military  disaster.  Commenting  in  general  on  the  military  leg- 
islation of  1862,  he  remarks  that  Congress  "exercised  the  power  to 
support  armies,  but  the  power  to  raise  them  it  conferred  on  the  gov- 
ernors."    (Upton,  Military  Policy  of  the  United  States,  434,  436.) 

"  Infra,  pp.  252-256. 

"  U.  S.  Stat,  at  Large,  XII,  731. 


248  THE  CONSTITUTION  UNDER  LINCOLN 

chinery  of  administration.  All  able-bodied  male  citi- 
zens between  twenty  and  forty-five,  and  foreigners 
who  had  declared  their  intention  to  become  citizens,  were 
"to  constitute  the  national  forces,"  and  were  declared 
Hable  to  military  service.  Exemptions  were  carefully 
defined  and  married  men  were  placed  in  a  class  that 
would  be  subject  to  call  only  after  the  unmarried  had 
been  taken.  For  the  enforcement  of  the  act  the  coun- 
try was  to  be  divided  into  enrollment  districts,  in  each 
of  which  a  Federal  provost  marshal  and  a  Federal 
board  of  enrollment  were  to  be  established.  The  dis- 
tricts were  subdivided  for  enrollment  purposes  and  local 
enrolling  ofl5cers  were  to  make  full  lists  of  eligible  citi- 
zens. Men  so  enrolled  were  subject  "to  be  called  into 
the  military  service  of  the  United  States"  during  the 
continuance  of  the  "rebellion,"  but  in  no  case  was  their 
service  to  exceed  three  years.  Conscripts  were  to  have 
the  same  advance  pay  and  the  same  Federal  bounties 
as  three-year  volunteers.  In  conducting  the  draft,  offi- 
cers were  to  take  into  consideration  the  number  already 
enlisted,  so  as  to  equalize  the  contributions  of  men  from 
the  various  States.  Those  drafted  might  be  excused 
either  by  furnishing  substitutes  or  paying  S300  com- 
mutation money,^"*  both  of  which  practices  had  been 
allowed  in  the  old  militia  systems.  If  any  person  should 
fail  to  respond  to  notice  he  was  to  be  deemed  a  de- 
serter, arrested  and  tried  by  court-martial.  For  en- 
couraging or  harboring  deserters  or  for  obstructing  the 
draft,  fines  and  imprisonments  were  imposed. 

Though  the  method  followed  was  unnecesarily  la- 
borious, the  work  had  been  so  far  completed  that  the 
first  draft  under  the  new  law  was  made  in  July,  1863. 

"  In  a  supplemental  conscription  act  of  July  4,  1864,  thia  provision 
for  exemption  by  the  payment  of  commutation  money  was  dropped: 
U.  S.  Stat,  at  Large,  XIII,  379. 


CONSCRIPTION  249 

Hundreds  of  enrolling  oflficers  collected  the  names,  which 
were  corrected  and  amplified  by  consulting  polling  lists, 
assessment  books,  pay-rolls,  and  the  like.  These  names 
were  turned  over  to  the  headquarters  of  the  enrollment 
bureaus,  which  then  proceeded  to  the  work  of  reducing 
the  lists  to  those  actually  subject  to  call,  eliminating 
all  who  were  disqualified,  or  were  entitled  to  exemp- 
tion. The  number  of  men  called  for  at  the  time  of  each 
draft  was  apportioned  among  the  States  according  to 
population,  and  in  filling  these  quotas  credit  was  given 
for  volunteers. 

A  considerable  interval  was  usually  allowed  between 
the  time  of  the  call  and  the  final  date  for  completing 
the  quota,  and  during  this  interval  volunteering  was 
actively  stimulated  with  the  object  of  supplying  the 
required  number  without  compulsion  if  possible.  One 
community  vied  with  another  to  make  the  best  show- 
ing, and  this  swelling  of  the  number  of  volunteers  was 
one  of  the  important  indirect  effects  of  the  draft. 
Everywhere  throughout  the  country  local  political  units 
incurred  heavy  debts  in  order  to  pay  bounties  for  vol- 
unteers and  thus  reduce  the  number  of  men  to  be 
drafted. 2°  In  the  State  of  New  Jersey  there  were  more 
than  one  hundred  laws  passed  at  one  session  of  the  leg- 
islature authorizing  various  districts  to  incur  obliga- 
tions for  this  purpose,  and  laws  of  a  similar  sort  were 
passed  in  other  States.^^    Incidentally  this  bounty  sys- 

""The  bounty  problem,  together  with  other  matters  pertaining  to  con- 
scription, was  ably  and  wittily  presented  by  Fred  A.  Shannon  in  a 
paper  entitled  "Conscription  and  the  Bounty  Problem,"  read  at  the 
meeting  of  the  American  Historical  Association  at  Ann  Arbor,  Michi- 
gan, December,  1925. 

"31  N.  J.  Law  Reps.  193;  Booth  vs.  Town  of  Woodbury,  32  Conn. 
118;  Speer  vs.  School  Directors  ...  of  Blairsville,  50  Pa.  St.  Reps.  150; 
Taylor  vs.  Thompson  et  al.,  42  III.  9;  Ferguson  vs.  Landram,  64  Ky. 
548;  Laws  of  Delaware,  1861-65,  Ch.  462;  Local  and  Private  Acts  of  Ky., 
1865.,  Chs.  610,  648. 


250  THE  CONSTITUTION  UNDER  LINCOLN 

tern  proved  to  be  most  unfortunate^  because  the  mer- 
cenary motive  was  hardly  the  proper  incentive  for  vol- 
unteering and  the  resources  of  the  people  were  drained 
for  an  unessential  expenditure.  The  system  raised  the 
price  of  substitutes,  and  also  encouraged  the  vile  prac- 
tice of  deserting  to  obtain  bounties  on  re-enlistment. 
Enlistment  was  actually  retarded  to  a  certain  extent  by 
the  bounty  system;  for  in  those  districts  where  the 
bounties  were  low,  enlistments  would  fall  off.  and  in  any 
case  where  there  seemed  a  prospect  of  an  increase  in 
the  amount  of  the  bounty,  men  who  were  enlisting  for 
that  motive  would  wait  till  they  could  command  a 
higher  price. 

When  the  time  came  for  drafting,  the  names  of  all 
eligibles  were  placed  on  cards  and  then  drawn  from  a 
wheel  by  blindfolded  officers,  this  part  of  the  procedure 
being  conducted  in  as  public  a  manner  as  possible.  Men 
thus  drafted  were  given  notice,  and  a  period  of  time 
was  allowed  during  which  they  could  establish  exemp- 
tion, provide  substitutes  or  pay  commutation  money. 
Those  who  did  not  escape  by  any  of  these  methods  would 
be  served  with  a  notice  from  the  provost  marshal  di- 
recting them  to  appear  at  a  specified  rendezvous  at  a 
certain  time.  It  was  at  this  point  that  mihtaiy  control 
over  the  men  began. 

The  difficult  conditions  under  which  the  Conscription 
Act  was  administered  are  matters  of  familiar  histor5^ 
In  many  districts,  where  passion  had  been  aroused  to 
a  high  pitch  by  the  war,  and  where  disloyalty  was  loudly 
proclaimed  in  the  newspapers,  it  was  hard  to  get  officere 
to  face  the  personal  dangers  which  threatened  any 
who  were  connected  with  the  draft.  To  prevent  the  re- 
enforcement  of  the  armies  great  numbers  of  disaffected 
citizens  paid  the  commutation  money  or  adopted  less 
justifiable  methods  of  evasion,  such  as  misrepresenting 


CONSCRIPTION  251 

their  age,  feigning  sickness,  pretending  imbecility,  or 
departing  for  Canada.  Firms  existed  for  the  purpose 
of  estabhshing  physical  or  mental  disability,  an  experi- 
enced attorney  and  an  "elastic"  country  doctor  being 
all  that  was  needed  to  supply  the  required  affidavits. 
Plots  of  secret  societies  and  outspoken  opposition  on 
the  part  of  "peace  advocates"  and  other  disaffected  men 
proved  extremely  irritating  to  the  Government  and 
offered  continual  temptation  to  the  use  of  despotic  meas- 
ures. As  to  actual  mob  violence,  this  was  not  particu- 
larly alarming  in  itself;  since  it  was  always  strictly  local, 
and  broke  down  on  the  first  appearance  of  troops.  It 
was  only  where  such  violence  coincided  with  a  sympa- 
thetic attitude  on  the  part  of  the  civil  authorities  that 
the  situation  boded  serious  trouble.  In  the  case  of  the 
draft  riot  in  New  York  City  in  July,  1863,  the  alarming 
feature  in  the  situation  was  not  the  overpowering  of 
the  police  and  the  provost  marshal's  guard  by  the  mob.^^ 
It  was  rather  the  friendly  attitude  of  Governor  Seymour 
toward  the  rioters  and  his  declaration  that  he  would 
use  his  influence  to  have  the  draft  suspended.  Else- 
where, as  in  Indiana,  Ohio,  and  Wisconsin,^^  forcible 

^  For  the  draft  riot  in  New  York,  see  Nicolay  and  Hay,  Lincoln, 
VII,  32-57;  Rhodes,  History  of  the  United  States,  IV,  320  et  seq.; 
Horace  Greelej',  American  Conflict,  II,  501  et  seq. 

"The  correspondence  of  Governor  Morton  (among  the  State  ar- 
chives at  Indianapolis)  and  the  life  of  Morton  by  W.  D.  Foulke  con- 
tain important  information  concerning  military  affairs  in  Indiana.  The 
best  published  source  on  this  subject  is  W.  H.  H.  Terrell,  Report  of  the 
Adjutant  General  of  Indiana.  Similar  information  for  Wisconsin  is  to 
be  found  among  the  governors'  letter  books,  preserved  by  the  Wisconsin 
Historical  Society  at  Madison.  The  facts  in  Druecker  vs.  Salomon^ 
21  Wis.  628,  reveal  circumstances  connected  with  draft  riots.  Concern- 
ing disturbances  in  Ohio,  see  0.  R.,  Ser.  I,  Vol.  23,  pt.  1,  pp.  395- 
397.  There  was  trouble  in  various  other  States.  Halleck  addressed 
Grant  concerning  the  withdrawal  of  troops  from  the  field  to  cope  with 
resistance  to  the  draft  in  disaffected  districts.  (Halleck  to  Grant, 
Aug.  11,  1864,  0.  R.,  Ser.  I,  Vol.  42,  pt.  2,  p.  111.)  Grant  replied  oppos- 
ing such  a  use  of  his  forces.     {Ibid.,  p.  193.) 


252  THE  CONSTITUTION  UNDER  LINCOLN 

resistance  to  the  draft  found  similar  approval  on  the 
part  of  the  local  authorities,  and  Federal  troops  had 
to  be  sent  to  the  scenes  of  trouble  in  order  to  clear 
the  atmosphere.  All  of  these  conditions  need  to  be  borne 
in  mind  in  studying  the  legal  aspects  of  the  draft,  for 
sometimes  the  antagonistic  attitude  of  certain  State 
judges  toward  the  Conscription  Act  was  merely  a  part 
of  the  many-sided  campaign  of  obstruction  which  this 
measure  encountered  in  regions  where  the  Union  cause 
was  unpopular.-^ 

IV 

As  was  naturally  to  be  expected,  conscription  pro- 
duced many  legal  perplexities.  Satisfactory  judicial 
precedents  were  lacking  and  many  unforeseen  problems 
of  interpretation  arose.  The  President's  wide  discre- 
tionary power  under  the  acts  was  contested;  habeas 
corpus  proceedings  were  interposed  to  release  drafted 
men ;  the  right  to  employ  the  militia  in  suppressing  draft 
troubles  was  controverted;  the  liabihty  of  aliens  was 
debated;  and  the  constitutionality  of  the  conscription 
acts  was  in  many  quarters  disputed.  Often  the  cases 
under  this  head  touched  other  questions  than  the  draft, 
such  as  military  control  over  civilians,  conflicts  of  State 
and  Federal  authority,  the  nature  of  the  war  powers, 
and  the  legality  of  executive  procedure  during  the  war. 

On  the  subject  of  executive  discretion  most  of  the 
controversy  centered  around  the  act  of  1862,  which,  as 
we  have  seen,  left  many  important  details  of  execu- 
tion to  the  President  and  the  State  governors.  The 
regulations  which  the  War  Department  issued  upon 
the  authority  of  the  President,  in  accordance  with  the 

•*For  a  comprehensive  official  account  of  the  enforcement  of  the  Con- 
scription Act,  see  historical  report  of  the  Operations  of  the  Enroll- 
ment Branch,  Provost  Marshal  General's  Bureau,  Wixshington,  D.  C, 
Mar.  17,  1866:     O.  R.,  Ser.  Ill,  Vol.  5,  pp.  712  et  seq. 


CONSCRIPTION  253 

act,  named  the  quotas  of  the  States  and  called  upon  the 
governors  to  fill  these  quotas  either  accordmg  to  State 
law  or  by  following  a  specified  method  contained  in 
the  regulations.  According  to  this  method,  enrollment 
lists  were  to  be  filed  with  the  sheriffs,  and  the  gov- 
ernors of  the  States  were  to  appoint  commissioners  for 
the  counties,  whose  duty  it  was  to  hear  proofs  of  ex- 
emption, grant  excuses,  conduct  the  draft,  and  accept 
substitutes;  w^hile  provost  marshals  in  the  States,  ap- 
pointed by  the  War  Department  on  nomination  of 
the  governors,  were  to  put  down  disturbances,  enforce 
attendance  at  rendezvous,  keep  the  men  in  custody  and 
perform  similar  functions.-^ 

The  validity  of  these  orders  under  the  President's  au- 
thority, involving  that  of  the  governors'  acts  in  accord- 
ance therewith,  was  in  various  cases  presented  for  ju- 
dicial determination.  It  was  argued  in  a  Wisconsin 
case  that,  in  view  of  the  division  of  our  Government 
into  three  branches,  the  creation  of  such  a  large  field 
of  executive  discretion  in  a  matter  of  such  high  im- 
portance as  conscription  amounted  to  a  delegation  of 
legislative  power  to  the  President,  and  that  for  this 
reason  the  Militia  Act  of  1862  was  unconstitutional. 
The  State  court  held  otherwise  and  pointed  to  the  dis- 
tinction between  "those  important  subjects  which  must 
be  entirely  regulated  by  the  legislature  itself,  and  those 
of  less  interest  in  which  a  general  provision  may  be  made 
and  power  given  to  those  who  are  to  act  under  such 
general  provision  to  fill  up  detail." 

When  the  militia  were  once  called  forth  [said  the  court], 
it  was  a  matter  of  no  vital  importance  how  they  should  be 
detached  and  drafted.     Congress  indicated  an  intention  of 

"General  Orders,  War  Department,  Nos.  94,  99,  Aug.  4  and  Aug.  9, 
1862:     O.  R.,  Ser.  Ill,  Vol.  2,  pp.  291,  333-335. 


254  THE  CONSTITUTION  UNDER  LINCOLN 

adopting  the  State  laws  upon  the  subject,  as  far  as  they  were 
applicable.  When  they  were  not  applicable,  or  none  existed, 
the  President  was  authorized  to  make  proper  rules  and  regula- 
tions for  enrolling  the  militia  and  drafting  them.  And  this 
no  more  partakes  of  legislative  power  than  that  discretionary 
authority  intrusted  to  everj'  department  of  the  Government 
in  a  variety  of  cases.  This  practice  of  giving  discretionary 
power  to  other  departments  or  agencies  who  were  intrusted 
with  the  duty  of  carrying  into  effect  some  general  provisions 
of  law,  had  its  origin  at  the  adoption  of  the  Constitution,  and 
in  the  action  of  the  first  Congress  under  it.  .  .  .  It  was  un- 
doubtedly in  strict  conformity  to  the  views  entertained  by 
the  great  statesmen  of  that  day.^° 

In  order  to  appreciate  the  extent  and  meaning  of  the 
court's  doctrine  in  this  case,  one  must  remember  t-hat 
the  act  of  1862  not  only  failed  to  cover  details  but  it 
did  not  even  specifically  provide  for  a  draft.  The  act 
referred  to  "enrolling"  and  "calling  forth"  the  militia; 
but  the  drafting,  or  the  use  of  compulsion,  was  deducible 
from  the  law  only  by  inference.  Nor  can  one  find  in 
the  Mihtia  Act  of  1795,  of  which  the  act  of  1862  was 
an  amendment,  any  provision  for  a  "draft"  of  the 
militia.  The  Federal  statutes  contained,  in  1862,  no 
specific  provision  for  a  draft.  Notwithstanding  this. 
Federal  drafts  were  conducted  in  various  States  in  that 
year.-^  Even  where  the  draft  of  this  year  was  conducted 
upon  State  authority,  this  was  done  under  the  Presi- 
dent's order.  It  is  therefore  apparent  that  the  first 
draft  for  the  raising  of  Federal  troops  ever  conducted 
in  our  history  under  the  Constitution  was  a  presidential 


"In  re  Grincr,  16  Wis.  447,  458. 

"  For  an  account  of  the  draft  of  November,  1862.  in  Wisconsin,  which 
occasioned  serious  trouble,  see  Sen.  Min.  Doc.  No.  71,  3S  Cong.,  1  sess. 
(This  draft  was  made  not  in  pursuance  of  State  law,  but  under  regu- 
lations issued  by  the  War  Department.) 


CONSCRIPTION  255 

draft.  It  was  instituted  by  rules  and  regulations  which 
the  President  promulgated  through  the  War  Depart- 
ment upon  authority  derived  only  inferentially  from  an 
act  of  Congress.  This  was  a  truly  remarkable  exten- 
sion of  executive  power  in  a  democratic  State,  and  the 
legality  of  the  draft  of  1862  was  a  matter  of  grave 
question  in  the  minds  of  many  thoughtful  men. 

The  same  question  of  executive  discretion  under  the 
draft  law  came  up  in  a  later  Wisconsin  case — that  of 
Druecker  vs.  Salomon,^^  the  specific  point  at  issue  being 
the  governor's  power  to  make  arrests  to  suppress  a  draft 
riot.  Again  the  discretionary  power  of  the  President 
was  upheld.  The  well-known  cases  of  Martin  vs.  Mott  ^® 
and  Luther  vs.  Borden^^  were  cited  to  illustrate  the  dis- 
cretionary authority  lodged  with  the  executive  and  to 
show  that  the  President  is  the  exclusive  judge  of  the 
existence  of  an  insurrection  and  of  the  necessity  of 
calling  out  the  militia.  A  distinction  was  drawn  between 
discretionary  and  ministerial  acts.  In  the  case  of  the 
former,  the  determination  on  the  part  of  the  executive 
is  final.  Such  a  power  is  to  be  exercised  only  by  the 
executive  and  there  is  no  chance  for  judicial  examina- 
tion or  review.  In  the  latter  the  executive  is  limited 
to  a  given  line  of  conduct  and  must  not  misuse  his  au- 
thority. In  the  case  in  hand,  the  governor's  order  for 
the  arrest  was  within  the  proper  field  of  executive  dis- 
cretion, the  governor  being  clothed  with  the  discretionary- 
power  of  the  President  pro  hoc  vice.  On  this  ground 
the  court  held  that  the  governor's  acts  must  be  regarded 
in  a  certain  sense  as  the  acts  of  the  President,  adding 
that,  though  such  power  was  "dangerous  to  liberty,"  it 
was  "absolutely  necessary  to  every  free  government." 

^21  Wis.  628. 
"^  12  Wheaton  19. 
"7  How.  1. 


256  THE  CONSTITUTION  UNDER  LINCOLN 

In  McCalFs  case,  which  arose  in  a  Federal  district 
court  in  Pennsylvania,  the  delegation  of  the  regulating 
power  to  the  President  in  matters  touching  the  draft 
was  sustained;  and  the  President's  right  to  act  through 
the  Secretary  of  War,  governors,  and  commissioners  was 
also  upheld.    The  court  said: 

Of  course,  Congress  cannot  constitutionally  delegate  to  the 
President  legislative  powers.  But  it  may  in  conferring  powers 
constitutionally  exercisable  by  him  prescribe  .  .  .  special 
rules  of  their  administration;  or  may  authorize  him  to  make 
the  rules.  .  .  .  When  .  .  .  Congress,  in  conferring  a  power  .  .  . 
not  only  omits  to  prescribe  regulations  of  its  exercise,  but,  as 
in  the  present  case,  expressly  authorizes  him  to  make  them, 
he  may,  .  .  .  consistently  with  the  legislative  purpose  de- 
clared, make  any  such  regulations  ...  as  Congress  might 
have  specially  prescribed.^^ 

V 

Conscription  necessarily  involved  custody  over  drafted 
men  not  in  active  military  service,  and  this  proved  a 
troublesome  issue  which  frequently  found  its  way  into 
the  courts  in  various  forms.  If  there  appeared  any 
defect  in  the  military  claim  to  any  person  held  by  the 
provost  marshal,  injunction  or  habeas  corpus  proceed- 
ings were  likely  to  be  instituted  to  obtain  that  person's 
discharge;  and  in  this  way  the  legality  of  this  military 
custody  was  subjected  to  judicial  inquiry.  The  issue 
became  seriously  complicated  in  cases  where  proceed- 
ings for  discharge  were  brought  in  the  State  courts,  for 
this  would  result  in  holding  Federal  officers  account- 
able to  State  tribunals.  Though  such  jurisdiction  on 
the  part  of  State  courts  was  defeated,  it  was  vigorously 
claimed,  and  presented  an  irritating  source  of  friction. 
Usually  and  regularly,  however,  proceedings  looking  to 
release  from  custody  were  brought  in  the  lower  Fed- 

"15  Fed.  Ca8.  1230. 


CONSCRIPTION  257 

era!  courts,  and  they  commonly  arose  from  habeas 
corpus  petitions.^-  It  may  be  said  that  provost  mar- 
shals everywhere  had  to  defend  before  the  civil  tri- 
bunals their  control  over  men  whom  they  claimed  to 
hold  under  the  draft,  and  that  the  Federal  courts  were 
at  all  times  open  to  petitioners  who  felt  they  had  a 
case  justifying  discharge. 

The  fundamental  fact  of  the  provost  marshal's  cus- 
tody and  of  the  Federal  court's  jurisdiction  in  the  matter 
of  release  was  treated  in  the  case  of  Daniel  Irons,  which 
arose  in  the  circuit  court  of  the  northern  district  of 
New  York  in  September,  1863.^^  In  this  case  the  court 
held  that  a  drafted  person  remains  in  the  custody  of 
the  provost  marshal  from  the  time  of  his  report  for 
duty  till  the  time  of  his  discharge,  and  that  a  Federal 
court  may  decree  the  discharge  through  habeas  corpus 
proceedings.  The  exact  time  when  the  military  cus- 
tody began  was  the  hour  at  which  the  drafted  man  was 
required  to  report  to  the  provost  marshal  as  indicated 
in  the  notice  sent  to  him,  and  this  control  could  be 
legally  exercised  whether  the  man  actually  appeared 
or  not.  Thus  military  control  as  a  legal  fact  was  in- 
dependent of  actual  possession  of  the  men  involved. 

It  w^as  claimed  that  under  the  act  of  1862  a  drafted 
militiaman  had  the  option  to  appear  at  rendezvous  or 
pay  a  fine.  The  courts  denied  this  claim,  however,  and 
the  President's  orders  which  gave  provost  marshals  the 
power  to  force  attendance  at  rendezvous  were  upheld.^* 

It  sometimes  happened  that  State  governors  were  re- 

"When  examining  the  files  and  dockets  of  the  Federal  district  court 
at  Cleveland,  Ohio,  the  writer  found  numerous  habeas  corpxis  hearings 
in  the  war  years  by  means  of  which  men  under  military  authority 
were  released.  Many  of  these  were  minors  who  enlisted  without  their 
parents'  consent. 

**13  Fed.  Cas.  98. 

•*Wendt's  Case,  2  Pittsburgh  Reports  402. 


258  THE  CONSTITUTION  UNDER  LINCOLN 

quested  to  release  men  who  had  been  taken  under  the 
conscription  law.  When  Governor  IMorton  of  Indiana 
received  such  a  request  from  the  wife  of  a  drafted  man 
he  informed  her  that  soldiers  in  the  service  of  the  United 
States  were  beyond  the  control  of  the  governor,  and 
that  the  Secretary  of  War  alone  could  discharge  them.^^ 
His  statement  would  have  been  more  accurate  if  he 
had  said  that  the  matter  of  discharge  lay  with  the 
War  Department  or  with  the  Federal  courts. 

It  followed  as  a  necessary  corollary  of  the  military 
control  over  drafted  men  that  those  who  failed  to  report 
became  deserters.  This  uncomfortable  status  applying 
to  men  never  mustered  into  the  service  aroused  wide- 
spread opposition,  but  the  legal  principle  was  perfectly 
clear  and  was  supported  by  incontestable  precedents. 
So  early  an  opinion  as  that  of  Justice  Bushrod  Washing- 
ton in  the  case  of  Houston  vs.  Moore,  heard  by  the 
Supreme  Court  in  1820,  authoritatively  disposed  of  the 
question  by  declaring  men  to  be  in  military  service  from 
the  time  of  rendezvous,^^ 

In  the  act  of  1863  this  question  was  not  left  to  ju- 
dicial interpretation,  but  the  law  specified  that  any 
drafted  person  failing  to  respond  to  notice  was  to  be 
deemed  a  deserter,  and  sent  to  the  nearest  military  post 
for  trial  and  punishment.     This  harsh,  though  logical, 


"Letter  of  Governor  Morton  to  a  lady  in  Blackford  County,  No- 
vember 26,  1SG4:     Morton  Correspondence,  MSS.,  Indiana  State  Library. 

"This  was  a  case  brought  up  for  review  from  the  Pennsylvania 
Supreme  Court  to  the  Supreme  Court  of  the  United  States,  and  it 
involved  the  constitutionality  of  a  Pennsylvania  law  providing  that  a 
State  court-martial  could  discipline  militia  delinquents  when  called 
into  Federal  service.  While  admitting  that  a  State  legislature  could 
not  fix  penalties  against  militiamen  when  Congress  had  acted  for  this 
purpose,  the  court  held  that  power  could  be  conferred  by  State  law  upon 
State  courts-martial  tc  enforce  Federal  law  upon  delinquents  in  the 
militia.  The  delinquency  in  this  case  consisted  in  failure  to  join  the 
militia  at  the  time  and  place  of  rendezvous.    (18  U.  S.  1.) 


CONSCRIPTION  259 

provision  proved  a  source  of  considerable  difficulty,  and 
in  some  cases  arguments  which  went  so  far  as  to  deny 
the  constitutionality  of  the  Conscription  Act  seem  to 
have  been  prompted  by  a  desire  to  save  drafted  boys 
from  the  penalties  of  "desertion." 

In  one  of  the  prominent  cases  a  State  judge  denied 
that  Congress  had  the  right  to  have  provost  marshals 
treat  freemen  as  deserters  directly  after  sendng  notice 
upon  them.  To  bring  the  militia  into  ''actual  service," 
he  argued,  there  must  be  obedience  to  the  call  and 
some  act  of  organization,  mustering,  rendezvous  or 
marching  done  in  pursuance  of  the  national  appeal.  As 
a  practical  matter  it  is  hard  to  see  how  conscription 
could  have  been  made  effective  on  any  such  basis;  for, 
if  these  lunitations  had  been  observed,  the  filling  up  of 
the  army  would  have  rested  upon  a  process  quite  as 
voluntary  as  that  of  enlistment,  and  the  only  compul- 
sion permitted  by  the  National  Government  would  have 
been  such  as  applies  equally  to  enlisted  and  drafted 
men.  It  is  significant  that  the  judge  who  argued  so 
was  opposed  to  national  conscription  in  toto  and  could 
see  no  way  by  which  such  conscription  could  be  legally 
accomplished.^'^ 

VI 

Another  source  of  difficulty  was  the  use  of  the  militia 
for  suppressing  draft  troubles.  There  were  various  com- 
munities in  which  the  provisions  of  the  draft  could  be 
executed  only  by  the  use  of  force.  Troops  were  needed 
not  only  to  put  down  riots  but  to  protect  officers  en- 
gaged in  conducting  the  enrollment,  drawing  the  names, 
serv'ing  notices  and  guarding  men  on  their  way  to  and 
from  rendezvous.     The  National  Government  was  fre- 

"  This  was  the  case  of  Kneedler  vs.  Lane,  45  Pa.  238. 


260   THE  CONSTITUTION  UNDER  LINCOLN 

quently  called  upon  to  supply  these  troops;  but  Union 
commanders  strenuously  opposed  withdrawing  forces 
from  the  field  for  this  purpose,  and  State  governors 
were  expected  to  do  all  in  their  power  to  maintain  the 
orderly  operation  of  the  draft  without  asking  for  Fed- 
eral assistance.  As  a  consequence  the  State  militia  was 
called  upon  for  this  disagreeable  duty.  An  example  of 
this  occurred  in  connection  with  the  draft  disturbances 
in  Ozaukee  County,  Wisconsin,  in  December,  1862,  where 
a  mob  attacked  the  commissioner  with  guns,  clubs,  and 
stones  so  that  intervention  by  the  State  militia  became 
necessary.  A  militia  captain  complained  of  such  serv- 
ice, but  the  Wisconsin  governor  took  the  ground  that 
the  militiamen  were  liable  for  such  duty  and  should  re- 
spond where  needed.^^ 

VII 

The  inevitable  question  of  exemption  because  of  con- 
scientious scruples  arose,  as  it  is  sure  to  do  in  all  cases 
where  compulsory  military  service  is  adopted.  In  the 
Militia  Act  of  1862  there  was  no  clause  covering  the 
subject  and  the  granting  of  such  exemption  seems  to 
have  been  left  largely  to  the  discretion  of  the  State 
governors  through  whom,  as  we  have  seen,  the  law  was 
enforced.  The  working  rule  in  Indiana,  as  drafted  by 
Governor  Morton  and  approved  by  the  War  Depart- 
ment, was  that  no  sweeping  exemption  on  this  ground 
should  be  permitted,  but  that  ministers  in  actual  charge 
of  pastoral  duties  should  be  excused  from  service.^® 

"Governor  Salomon  to  Lincoln,  Dec.  1,  1862;  Same  to  Commander 
of  Ozaukee  Guards,  Jan.  17,  1863:  Governors'  Correspondence,  MSS., 
Wisconsin  State  Historical  Library'. 

"Governor  Morton  to  Secretary  Stanton,  Aujrust  30.  1862:  Morton 
Correspondence  (MSS.,  Indiana  State  Library).  By  agreement  between 
the   Indiana   Friends  and   Governor   Morton,   a   i)lan   was   devised  in 


CONSCRIPTION  261 

The  law  of  1863  enumerated  exhaustively  the  condi- 
tions of  exemption,  but  made  no  provision  for  the  con- 
scientious objector.  Not  even  ministers  were  exempt. 
The  result  was  that  Quakers  and  others  whose  beliefs 
forbade  warlike  effort  of  any  sort  were  placed  in  a  very 
difficult  position. 

There  is  evidence  of  real  suffering  on  the  part  of 
some  who  rigidly  adhered  to  their  conscientious  scruples. 
A  most  remarkable  case  was  that  of  one  Pringle,"*"  a 
Vermont  Quaker  whose  piety  was  so  deep  and  whose 
objections  to  war  so  pronounced  that  when  he  was 
drafted  in  the  summer  of  1863  he  not  only  flatly  re- 
fused to  violate  the  Scriptures  by  serving  himself,  but 
was  too  conscientious  to  hire  a  substitute,  thus  tempt- 
ing a  fellow  being  to  sin.  Neither  would  he  pay  com- 
mutation money."*^  It  was  a  case  of  Pringle  versus  the 
United  States.  He  was  hustled  by  force  into  a  car  with 
other  conscripts  and  carried  to  a  camp  of  rendezvous 
near  Boston.  Being  assigned  to  fatigue  duty,  he  re- 
fused, and  stood  his  ground  like  a  martyr.  No  amount 
of  bullying  or  argument  could  shake  him,  since  in  fact 
he  stood  ready  to  die  rather  than  conform  to  military 
discipline.  In  consequence  of  this  remarkable  stand  he 
was  thrust  into  the  guardhouse  along  with  vile  and 
desperate  men.  An  attempt  to  induce  him  to  be  trans- 
accordance  with  which  many  Quakers  paid  the  sum  of  $200  each  for 
exemption  in  1862,  but  this  was  found  to  be  without  authority  of  law, 
and  the  money  was  refunded.  (Foulke,  Life  of  Oliver  P.  Morton, 
I,  199.) 

*"  Cyrus  G.  Pringle,  Record  of  a  Quaker  Conscience  (N.  Y.,  Mac- 
millan,  1918) ;  "The  United  States  versus  Pringle,"  Atlantic  Monthly, 
Vol.  Ill,  pp.  145-162  (Feb.,  1913). 

"Quaker  principles  during  the  war  were  interpreted  by  the  official 
bodies  of  that  denomination  as  opposed  to  the  payment  of  commutation 
money.  Many  individual  Quakers,  however,  adopted  this  plan  of 
avoiding  service  and  were  leniently  treated  by  their  brethren.  (R.  M. 
Jones,  Later  Periods  of  Quakerism,  II,  729-730.) 


262   THE  CONSTITUTION  UNDER  LINCOLN 

ferred  to  hospital  service  and  later  to  the  work  of  the 
bureau  for  colored  refugees  in  the  South  was  without 
avail.  He  would  not  "purchase  life  at  the  cost  of  peace 
of  soul." 

When  the  conscripts  were  carried  to  Alexandria,  Vir- 
ginia, to  be  equipped,  Pringle  refused  to  receive  a  gun. 
In  the  hurried  excitement  of  equipping  a  regiment  his 
arguments  were  wasted  on  the  petty  officers  to  whom 
they  were  directed,  and  the  equipment,  including  the 
gun,  was  forcibly  buckled  on  him.  He  was  gagged  for 
refusal  to  clean  his  gun;  but,  in  general,  this  inflexible, 
serene  Quaker  was  not  seriously  mistreated  by  the  of- 
ficers who  had  to  deal  with  him.  Finally  the  problem 
was  referred  to  Lincoln  himself,  who  disposed  of  the 
matter  by  directing  that  the  man  be  sent  home.'*-  So 
Pringle  won  his  case. 

The  trials  of  such  as  Pringle  finally  claimed  the  at- 
tention of  Congress  and  the  question  of  modifying  the 
law  in  their  favor  was  debated  in  January,  1864."' ^  It 
developed  in  the  debate  that  the  clergy  had  made  no 
strenuous  objection  to  their  lack  of  exemption.  There 
had  been  some  petitions  for  the  relief  of  ministers  from 
military  service,  but  this  represented  only  a  small  frac- 
tion of  the  clergy  of  the  country.  On  the  other  hand, 
many  of  the  clergy  had  expressed  gratitude  to  Congress 
for  requiring  them  to  perform  military  duty,  and  had 
congratulated  themselves  on  this  recognition  of  their 
manhood.  The  suggestion  to  exempt  ministei-s  struck  a 
snag  in  the  Senate  when  it  was  shown  that  in  the  wealthy 


"Lincoln's  syniiKithy  for  tlie  Quakiis  was  often  shown,  and  his  letter 
to  Mrs.  Gurney,  widow  of  a  distinguished  Quaker  minister,  is  a  classic. 
(Nicolay  and  Hay,  Lincoln,  VI,  326  et  scq.;  R.  M.  Jones,  Later  Periods 
oj  Quakerism,  II,  73G;  F.  G.  Cartland,  Southern  Heroes,  or  the  Friends 
in  War  Time,  137.) 

**Cong.  Globe,  38  Cong.,  1  sess.,  pp.  204  et  seq. 


CONSCRIPTION  263 

Amana  Society  (numerous  in  Erie  County,  New  York) 
every  member  was  a  minister!  ^^ 

As  the  lawmakers  sought  some  consistent  basis  on 
which  to  offer  relief  to  conscientious  objectors,  the  more 
serious  phases  of  the  question  appeared.  While  piteous 
stories  were  told  of  the  sufferings  of  this  class  of  peo- 
ple— stories  of  moral  heroism  among  humble  men — yet, 
as  Senator  Anthony  of  Rhode  Island  pointed  out,  not 
one  eflScient  soldier  had  been  added  to  the  army  by 
the  impressment  of  men  conscientiously  scrupulous 
against  bearing  arms.^^  Something,  he  said,  should  be 
conceded  to  a  class  of  people  that  had  consistently 
opposed  slavery  and  had  not  been  slaveholders  even  in 
slaveholding  States. 

The  importance  of  such  considerations  was  conceded, 
and  an  act  was  passed,  February  24,  1864,  which  af- 
forded a  qualified  exemption  on  religious  grounds.^^ 
Members  of  religious  denominations  whose  articles  of 
faith  opposed  the  bearing  of  arms  were  to  be  considered 
"non-combatants"  when  "drafted  into  the  military  serv- 
ice," and  were  to  be  assigned  to  duty  in  hospitals,  or  in 
the  care  of  freedmen,  or  they  were  to  pay  $300  for  the 
benefit  of  sick  and  wounded  soldiers.  Satisfactoiy  evi- 
dence was  required  showing  conduct  consistent  with  their 
declaration  of  scruples.  This  half-way  measure  was  ac- 
cepted as  a  well-meant  concession  by  Congress,  in  spite 
of  the  fact  that  the  alternative  of  non-combatant  service 
already  existed  in  practice  as  a  matter  of  executive 
policy,  and  had  been  made  available  in  a  number  of 
instances.'*'^ 

**Ibid.,  p.  207. 

*^Ibid.,  p.  204. 

*•  U.  S.  Stat,  at  Large,  XIII,  9,  sec.  17. 

*'  An  excellent  study  of  both  Northern  and  Southern  conscientious 
objectors  is  to  be  found  in  The  Treatment  oj  Conscientious  Objectors 
during  the  Civil  War,  by  Gertrude  Ady,  an  unpublished  master's  dis- 


264   THE  CONSTITUTION  UNDER  LINCOLN 


vin 

A  still  more  difl5cult  question  of  exemption  presented 
itself  in  the  case  of  foreigners.  It  was  generally  con- 
ceded that  the  doctrine  of  inalienable  allegiance  was 
dead,  and  that  expatriation  was  a  recognized  right. 
This  principle,  however,  merely  meant  that  those  for- 
mer aliens  whose  change  of  allegiance  had  been  com- 
pleted, and  who  were  therefore  citizens  of  the  United 
States,  were  liable  to  military  service.  This  did  not 
go  far  enough.  There  were  many  thousands  of  for- 
eign settlers  in  the  country  who  were  to  all  intents  and 
purposes  Americans,  having  adopted  the  new  land  as 
their  permanent  home.  These  men  had  lived  for  years 
under  the  protection  of  our  laws,  and  many  of  them 
had  exercised  political  rights.  Some  of  the  newer  States 
of  the  West  made  their  laws  particularly  liberal  in  order 
to  attract  immigrants,  and  had  admitted  unnaturalized 
aliens  to  the  voting  privilege.  In  view  of  these  facts 
it  was  very  natural  that  the  question  of  claiming  the 
service  of  these  foreign  inhabitants  should  be  raised. 
To  raise  the  question,  however,  was  to  present  both  con- 
stitutional and  international  difficulties.  The  question 
whether  non-citizens  could  be  drafted  into  the  army 
was  a  serious  constitutional  problem,  and  it  was  also 
a  grave  issue  of  international  law  as  to  whether  one 
nation  may  impress  for  military  duty  the  subjects  of 
other  nations  residing  within  its  borders. 

It  was  in  Wisconsin  that  this  question  appeared  in 

sertation  prepared  at  the  University  of  Illinois  in  1922.  Some  of  the 
books  dealing  with  this  subject  are  Rufus  M.  Jones,  Later  Periods  of 
Quakerism;  Ethan  Foster,  Conscript  Qxiakers;  Pringle.  The  Record  of 
a  Quaker  Conscience  (Macmillan,  1918) ;  Memoir  and  Correspondence 
of  Eliza  P.  Giimey ;  All  Friend.^  Peace  Conference:  Report  of  Com- 
mission I ;  Margaret  E.  Hirst,  The  Quakers  in  Peace  and  War. 


CONSCRIPTION  265 

its  most  acute  form.  The  laws  of  that  State  permitted 
alien  declarants  to  vote  after  one  year's  residence,  and 
there  had  been  a  flood  of  German  immigration  into  the 
State  during  the  fifties.  The  foreign  element  of  the 
State  was  so  large  that  the  exemption  of  those  who 
were  unnaturalized  would  have  made  it  a  real  hard- 
ship for  the  State  to  raise  its  quota  estimated  on  the 
basis  of  general  population.  The  draft  of  1862  was 
conducted  in  Wisconsin  in  accordance  with  Federal  ex- 
ecutive regulations  under  the  militia  law  which  has 
already  been  discussed/^  and  with  regard  to  the  Ger- 
mans a  mass  of  correspondence  passed  between  the  gov- 
ernor and  Secretary  Seward  at  Washington. 

The  first  decision  of  policy  in  this  matter  was  there- 
fore made  by  the  Secretary  of  State.^^  Having  given 
particular  attention  to  the  Wisconsin  correspondence, 
and  having  sent  a  special  messenger  to  confer  with  Gov- 
ernor Salomon,  he  announced  in  November,  1862,  that 
all  who  had  voted  in  the  State  should  be  held  liable 
to  the  draft,  regardless  of  alienage,  and  that  doubtful 
cases  should  be  referred  to  the  Department  of  State, 
not  that  of  War.  Investigations  were  conducted  for 
the  State  Department  by  local  draft  commissioners,  and 
election  records  were  searched  for  this  purpose.  On 
the  other  side  the  various  consuls  (e.g.,  the  Consul  of 
Wiirttemberg  at  Milwaukee)  also  took  part  in  these  in- 
vestigations. Since  the  consuls  had  been  fully  advised 
as  to  the  necessity  of  making  a  declaration  regarding 
voting,  it  was  considered  a  "safe  presumption"  that  the 
applicant  had  voted  in   those  cases  where  there  was 


**See  above,  pp.  252-253. 

*'The  governors'  letter  books  in  the  Wisconsin  State  Historical  Li- 
brary at  Madison  (especially  from  November,  1862,  to  January,  1863) 
and  the  "domestic  letters"  of  the  Department  of  State  at  Washington 
form  the  chief  basis  for  this  part  of  the  discussion. 


26G   THE  CONSTITUTION  UNDER  LINCOLN 

no  statement  bearing  on  that  point.  As  the  governor 
stated,  there  was  also  a  strong  presumption  that  aliens 
of  more  than  six  years'  residence  had  voted,  and  the 
consuls  so  understood  it.  In  all  of  the  cases  investi- 
gated, the  application  for  exemption  on  the  ground 
of  alienage  was  denied  where  it  was  found  that  the 
applicant  had  exercised  the  franchise. 

Up  to  March,  1863,  there  had  been  no  legislation  by 
Congress  covering  the  case  of  foreigners,  but  the  Con- 
scription Act  passed  at  that  time  was  made  to  include 
"persons  of  foreign  birth  who  shall  have  declared  .  .  . 
their  intention  to  become  citizens."  ^'^  Doubts  were  ex- 
pressed at  the  time  as  to  the  wisdom  as  well  as  the 
constitutionality  of  this  provision. ^^  The  opponents  of 
the  measure  argued  that  the  United  States  has  no  right 
to  compel  ahens  who  have  taken  the  preliminary  oath 
to  do  military  service,  but  that  this  right  of  compulsion 
applies  only  to  citizens.  Though  they  admitted  the 
right  of  expatriation,  they  pointed  out  that  the  trans- 
fer of  allegiance  was  not  completed  until  the  final  oath 
had  been  taken.  The  United  States  could  not,  for  in- 
stance, require  an  alien  declarant  to  serve  in  war  against 
his  home  country,  and  the  right  assumed  in  this  pro- 
vision of  the  law  amounted  to  that. 

That  our  Government  should  have  made  the  declara- 
tion of  intention  to  become  an  American  citizen  the 
basis  for  forcing  aliens  into  militaiy  service  seems  the 
more  remarkable  when  one  examines  the  legal  effect  of 
such  declaration.  So  far  as  the  privileges  or  rights 
of  nationality  are  concerned,  this  legal  effect  is  7iil.  It 
has  been  often  held  in  our  courts  that  "mere  declara- 
tion of  intention"  does  not  confer  citizenship.     Such  a 

"[/.  S.  Stat,  at  Large,  XII,  731,  sec.  1. 

"For  the  debates  on  this  subject,  see  Cong.  Globe,  37  Cong.,  3  sess., 
pp.  992,  1001,  138-1;  38  Cong.,  1  sess.,  pp.  228  et  seq. 


CONSCRIPTION  267 

declaration,  for  instance,  does  not  entitle  a  man  to  a 
passport ;  and  it  has  no  international  value  in  the  event 
of  the  declarant  returning  to  his  native  country.  In 
other  words  this  preliminary  oath  of  declaration  confers 
none  of  the  rights  of  American  citizenship;  and  yet  in 
the  Conscription  Act  it  was  made  the  basis  of  imposing 
the  heaviest  obligation  of  citizenship — namely,  military; 
semce.^- 

The  best  justification  for  the  provision,  perhaps,  was 
that  some  of  the  States  conferred  the  voting  privilege 
upon  those  who  had  made  the  declaration,  and  that 
such  persons  had  become  "State  citizens."  There  was 
at  this  time,  of  course,  no  constitutional  definition  of 
United  States  citizenship;  and  the  whole  matter  was  in 
considerable  confusion,  owing  to  the  principle  announced 
in  the  Dred  Scott  case  that  citizenship  in  a  State  did 
not  involve,  in  the  full  sense,  citizenship  in  the  United 
States. 

Yet,  in  spite  of  the  fact  that  the  constitutional  defini- 
tion of  United  States  citizenship  had  not  been  intro- 
duced, such  citizenship  was  a  distinct  reality.  In  such 
things  as  the  issuance  of  passports  and  the  protection 
of  our  nationals  abroad,  citizenship  in  the  United  States 
was  as  real  before  the  adoption  of  the  Fourteenth  Amend- 
ment as  afterward.  So  far  as  former  aliens  were  con- 
cerned, the  case  was  covered  entirely  by  the  uniform 
naturalization  laws  of  Congress,  and  this  phase  of  the 
question  was  in  no  way  affected  by  State  action.  In 
its  proper  meaning  the  phrase  "State  citizenship"  re- 
lated to  matters  within  the  competence  of  State  govern- 
ments, certainly  not  to  such  a  matter  as  the  naturaliza- 
tion of  aliens,  in  which  international  complications  were 
sure  to  arise.  One  could  hardly  appeal  to  this  "State 
citizenship,"  then,  in  justification  of  the  national  law 

"Moore,  Digest  of  International  Law,  III,  336,  338,  343. 


268  THE  CONSTITUTION  UNDER  LINCOLN 

which  imposed  military  service  upon  unnaturalized  for- 
eigners. 

Having  once  adopted  the  principle  that  aliens  could 
be  liable  to  the  draft,  Congress  took  a  further  step  in 
application  of  the  principle.  By  the  act  of  February 
24,  1864,  voting  was  made  an  absolute  basis  for  mili- 
tary liability.^^  According  to  this  act,  no  foreigner  was 
to  be  exempt  "who  [had]  at  any  time  assumed  the 
rights  of  a  citizen  by  voting"  at  any  State,  Federal,  or 
territorial  election.  The  fact  of  voting  was  to  be  con- 
clusive against  any  claim  for  exemption  on  the  basis  of 
alienage,  and  the  same  was  true  with  regard  to  office- 
holding. 

This  provision,  as  we  have  already  seen,  had  originated 
with  Secretary  Seward,  and  had  long  existed  as  a  matter 
of  executive  regulation.  Here  again  the  peculiar  dual 
system  charaeteristic  of  the  American  Government  was 
manifest  in  the  fact  that  the  exercise  of  a  right  con- 
ferred by  State  law  was  made  the  basis  of  a  Federal 
obligation. 

rx 

Were  the  conscription  laws  of  the  Civil  War  "constitu- 
tional"? It  is  now,  of  course,  generally  conceded  that 
Congress  has  the  power  of  conscription,  but  in  the  sixties 
this  power  was  emphatically  disputed.^*     As  the  laws 

°  U.  S.  Stat,  at  Large,  XIII,  9,  sec.  18. 

"In  1863  the  famous  editor  of  the  New  York  Tribune  wrote  to  Secre- 
tary of  War  Stanton:  "It  ia  folly  to  close  our  eyes  to  the  signs  of  the 
times.  The  people  have  been  educated  to  the  idea  of  individual  sov- 
ereignty, &  the  principle  of  conscription  is  repugnant  to  their  feelings 
&  cannot  be  carried  out  except  at  great  peril  to  the  free  States.  .  .  . 
The  entire  system  must  be  changed.  .  .  .  Drafting  is  an  anomaly  in  a 
free  State;  it  oppresses  the  masses.  Like  imprisonment  for  debt  .  .  . 
it  must  and  will  be  reformed  out  of  our  system  of  political  economy." 
(Horace  Greeley  to  Stanton,  June  12,  1863:  Stanton  Papers,  No. 
62634.) 


CONSCRIPTION  269 

were  never  tested  as  to  constitutionality  before  the  Su- 
preme Court,  the  question  must  be  discussed  on  the 
basis  of  prevailing  legal  opinion. 

In  1814  James  Monroe,  Secretary  of  War,  presented 
to  Congress  a  plan  for  increasing  the  army  involving 
compulsory  enrollment.  Touching  the  constitutional 
question  he  said: 

The  idea  that  the  United  States  cannot  raise  a  regular  army 
in  any  other  mode  than  by  accepting  the  voluntary  service  of 
individuals  is  believed  to  be  repugnant  to  the  uniform  con- 
struction of  all  grants  of  power.  ...  An  unqualified  grant 
of  power  gives  the  means  necessary  to  carry  it  into  effect. 
.  .  .  The  commonwealth  has  a  right  to  the  service  of  all  its 
citizens,  or  rather  the  citizens  .  .  .  have  a  right  collectively 
and  individually  to  the  service  of  each  other  to  repel  any 
danger  which  may  be  menaced.  The  manner  in  which  this 
service  is  to  be  apportioned  among  the  citizens,  and  rendered 
by  them,  are  objects  of  legislation.  .  .  .  The  power  of  the 
United  States  over  the  militia  has  been  limited,  and  for  rais- 
ing regular  armies  granted  without  limitation,^^ 

In  a  paper  that  was  not  published  during  his  life- 
time, Lincoln  elaborated  his  views  on  the  subject.^^  He 
wrote: 

They  tell  us  the  law  is'  unconstitutional.  It  is  the  first 
instance,  I  believe,  in  which  the  power  of  Congress  to  do  a 
thing  has  ever  been  questioned  in  a  case  when  the  power  is 
given  by  the  Constitution  in  express  terms.  Whether  a  power 
can  be  implied  when  it  is  not  expressed  has  often  been  the 
subject  of  controversy;  but  this  is  the  first  case  in  which  the 
degree  of  effrontery  has  been  ventured  upon,  of  denying  a 
power  which  is  plainly  and  distinctly  written  down  in  the 
Constitution.  .  .  .  The  case  simply  is,  the  Constitution  pro- 
vides that  the  Congress  shall  have  power  to  raise  and  support 

'^Niles'  Weekly  Register,  VII,  138-139. 
••  Nicolay  and  Hay,  Lincoln,  VII,  49-57. 


270  THE  CONSTITUTION  UNDER  LINCOLN 

armies;  and  by  this  act  tlie  Congress  has  exercised  the  power 
to  raise  and  support  armies.  This  is  the  whole  of  it.  .  .  .  The 
Constitution  gives  Congress  the  power,  but  it  does  not  prescribe 
the  mode  or  expressly  declare  who  shall  prescribe  it.  In  such 
case  Congress  must  prescribe  the  mode,  or  relinquish  the 
power.  There  is  no  alternative.  ...  If  the  Constitution  had 
prescribed  a  mode,  Congress  could  and  must  follow  that  mode ; 
but,  as  it  is,  the  mode  necessarily  goes  to  Congress,  with  the 
power  expressly  given.  The  power  is  given  fully,  completely, 
unconditionally.  It  is  not  a  power  to  raise  armies  if  State 
authorities  consent,  nor  if  the  men  to  compose  the  armies  are 
entirely  willing;  but  it  is  a  power  to  raise  and  support  armies 
.  .  .  without  an  "if." 

These  views  indicate  the  convictions  of  the  adminis- 
tration, while  the  passage  of  the  act  by  substantial  ma- 
jorities in  both  houses  shows  the  preponderance  of  leg- 
islative opinion  in  its  favor.^^  That  Congress  gave 
particular  attention  to  the  matter  of  constitutionality  is 
shown  by  the  debates  and  by  the  unusual  preamble,  in 
which  the  "duty"  of  the  Government  "under  the  Con- 
stitution" is  mentioned. 

For  judicial  interpretation  on  the  point  of  constitu- 
tionality we  must  turn  to  the  decisions  of  State  courts; 
and,  instead  of  following  these  decisions  case  by  case, 
it  will  be  better  for  our  purpose  to  review  the  principal 
arguments  on  both  sides.^^ 


"  In  the  House  the  vote  on  the  Conscription  Act  was  115  yeas  and  49 
nays.  {Cung.  Globe,  37  Cong.,  3  sess.,  p.  1293.)  The  yeas  and  nays 
were  not  taken  on  the  final  passage  of  the  bill  in  the  Senate,  but  the 
sentiment  of  the  upper  house  may  be  judged  by  the  vote  on  the  motion 
of  Senator  Bayard  of  Delaware  "to  postpone  indefinitely  the  considera- 
tion of  the  bill."  This  motion  was  defeated  by  a  vote  of  11  to  35. 
Ubid.,  p.  1389.) 

"  For  the  cases  whose  arguments  are  summarized  in  the  following 
paragraphs,  see  Ferguson  vs.  Landram,  64  Ky.  548;  Druecker  vs. 
Salomon,  21  Wis.  628;  The  Conscription  Cases,  9  Wright  (Pa.)  238; 
In  re  Griner,  16  Wis.  447;  Ivncedlcr  vs.  Lane,  45  Pa.  238.     The  cita- 


CONSCRIPTION  271 

The  opponents  of  conscription  usually  adopted  the 
State-rights,  strict-constructionist  line  of  argument  and 
made  much  of  the  distinction  between  the  militia  and 
the  aniiy.  The  militia,  they  argued,  is  a  State  institu- 
tion. Congress  is  hmited  to  calling  it  out  and  providing 
its  discipline  when  in  "actual  service"  of  the  United 
States.  The  extent  to  which  the  conscription  law  in- 
terferes with  this  State  institution  by  bringing  State 
militiamen  and  State  officers  within  the  draft,  amounts 
to  a  breach  of  the  Constitution.  The  Fathers  never 
contemplated  giving  to  Congress  so  sweeping  a  power 
as  conscription,  knowmg,  as  they  did,  the  arbitrary 
abuse  to  which  this  might  lead;  and  if  they  had  so  con- 
templated, they  would  have  introduced  some  check  upon 
the  power.  They  meant  to  guard  against  a  war  of  con- 
quest. By  limiting  Congress  to  voluntary  enlistment 
they  made  it  certain  that  no  war  could  be  fought  that 
was  not  a  people's  war.  If  Congress  had  this  power 
of  conscription,  then  it  could  raise  troops  by  compul- 
sion in  time  of  peace,  and  this  is  wholly  inconsistent 
with  the  well-known  jealousy  of  standing  armies  which 
obtained  at  the  time  the  Constitution  was  adopted.  If 
Congress  may  compel  military  service,  then  it  may  com- 
pel people  to  lend  money — it  may  take  their  horses, 
their  lands,  their  ships,  their  homes!  Where  will  you 
stop?  During  the  War  of  1812  conscription  was  de- 
feated.   But  that  was  a  foreign  war.    The  present  con- 


tions  contained  in  these  decisions  offer  a  sufficient  guide  to  the  legal 
literature  on  the  subject.  In  some  of  the  Southern  States  there  were 
notable  decisions  concerning  the  constitutionality  of  conscription,  the 
legal  principles  involved  being  the  same  as  those  at  the  North.  See, 
for  instance,  Ex  parte  Hill,  38  Ala.  429;  Barber  vs.  Irwin,  34  Ga.  27; 
Ex  parte  Coupland,  26  Tex.  386;  Jeffers  vs.  Fair,  33  Ga.  369.  For  ex- 
President  Buchanan's  views  in  support  of  the  constitutionality  of  the 
conscription  law,  see  Works  of  James  Buchanan,  ed.  by  J.  B.  Moore, 
XI,  341. 


272  THE  CONSTITUTION  UNDER  LINCOLN 

flict,  however,  is  but  an  insurrection,  or  rebellion.  For 
insurrections  and  rebellions  a  specified  method  is  pro- 
vided in  the  Constitution — namely,  the  calling  out  of 
the  State  militia.  To  establish  a  draft  in  order  to  "sup- 
press insun-ection"  is  a  dangerous  innovation  without 
constitutional  warrant.  In  time  of  rebellion  the  Gov- 
ernment should  not  imitate  the  rebels  by  violating  the 
Constitution,  but  should  stick  to  the  fundamental  law, 
so  as  not  to  dishearten  the  friends  of  constitutional 
order. 

It  was  also  urged  that  the  Conscription  Act  was  un- 
constitutional in  that  it  subjected  the  citizen  to  martial 
law  and  overthrew  fundamental  guarantees  intended  to 
protect  individual  rights.  Only  when  "in  actual  serv- 
ice," it  was  urged,  can  State  militiamen  be  subjected 
to  military  discipline  prescribed  by  Congress.  To  treat 
men  as  military  deserters  because  they  do  not  respond 
to  the  draft  is  to  deny  the  right  of  trial  by  jury  and 
to  deprive  them  of  various  kindred  guarantees. 

In  spite  of  these  objections  the  national  power  was  up- 
held by  a  strong  preponderance  of  judicial  opinion.  That 
this  is  a  government  of  limited  powers  was  conceded; 
but,  in  language  reminiscent  of  Hamilton,  Marshall, 
and  Webster,  it  was  argued  that  the  general  government 
is  supreme  in  those  activities  for  which  it  was  created, 
and  that  such  powers  as  are  granted  may  be  exercised 
to  an  unlimited  extent.  The  power  to  "declare  war" 
and  to  "raise  armies"  are  given  without  qualification  as 
to  means,  and  conscription  is  a  "necessary  and  proper" 
means  to  "carry  into  effect"  these  powers.  As  to  the 
intention  of  the  "Fathers,"  history  shows  that  the  Con- 
stitution was  created  to  correct  one  of  the  most  flagrant 
defects  of  the  old  Articles  of  Confederation  under  which 
Congress  was  given  power  to  declare  war,  but  was  power- 
less to  conduct  a  war  on  its  own  authority,  since  it  could 


CONSCRIPTION  273 

only  request  troops  from  the  States.  It  was  to  avoid 
this  embarrassment  that  the  general  government  was 
given  an  independent  power  to  "raise  .  .  .  armies." 

The  army  and  the  militia  are  distinct  and  separate, 
and  the  authority  of  Congress  over  the  army  is  superior 
to  the  authority  of  the  States  over  the  militia.  Ordi- 
narily, there  is  no  conflict  between  these  two  institu- 
tions and  they  may  exist  peaceably  side  by  side;  but 
in  times  of  great  emergency,  when  they  do  conflict,  a 
local  and  subordinate  power  must  always  bow  to  a 
general  power  granted  for  vital  purposes.  Service  in 
the  State  militia  does  not  exhaust  the  liabilities  of 
citizenship,  and  Congress  is  not  deterred  from  calling  a 
State  militiaman  into  the  army.  It  is  true  that  the 
will  of  the  people  should  be  the  controlling  factor  in 
these  matters;  but  the  people,  through  their  representa- 
tives in  Congress,  must  have  the  power  to  lay  the  bur- 
dens of  national  defense  equally  upon  the  willing  and 
the  unwilling.  Abuse  is  to  be  avoided  not  by  with- 
holding this  essential  power,  but  by  so  shaping  the  gen- 
eral structure  of  the  Government  as  to  make  it  respon- 
sive to  the  popular  will.  In  every  free  government  the 
citizen  must  surrender  some  portion  of  his  absolute  right 
for  the  general  good.  The  power  of  conscription  must 
lie  somewhere;  and  it  can  only  lie  with  the  National 
Government,  which  has  the  power  of  war  and  peace  and 
the  control  of  foreign  relations,  as  well  as  the  power 
of  raising  armies.  The  conscription  law  does  not  violate 
the  clauses  which  guarantee  jury  trial  and  prohibit  un- 
reasonable seizures  and  searches.  The  drafted  soldier 
is  under  miUtary  discipline,  and  the  Constitution  gives 
him  no  more  protection  against  court-martial  proceed- 
ings if  he  fails  to  report  for  duty  than  it  gives  a  deserter 
from  the  army. 

In  the  large  sense,  of  course,  it  may  be  said  that 


274  THE  CONSTITUTION  UNDER  LINCOLN 

the  conscription  law  did  stand  the  test  of  constitutional- 
ity. The  law  was  not  contemporaneously  challenged  as 
to  constitutionality  before  the  Federal  Supreme  Court, 
but  had  this  been  done  there  is  little  doubt  that  the  court 
would  have  upheld  the  act  as  it  upheld  confiscation  and 
other  war  measures.  Judicial  doctrine  as  to  compulsory 
mihtary  service  has  now  been  definitely  settled  in  the 
Selective  Draft  Law  Cases  in  which  the  validity  of  the 
Selective  Service  Act  of  1917  was  upheld.  In  delivering 
the  opinion  of  the  court  in  these  cases  Chief  Justice 
White  characterized  the  contention  of  the  opposition  as 
simply  a  denial  to  Congress  of  the  power  to  raise  armies 
which  the  Constitution  gives  and  an  assailing  of  the  wis- 
dom of  the  framers  in  conferring  authority  in  Congress 
and  not  leaving  it  with  the  States.  The  army  power  he 
held  to  be  in  no  way  controlled  by  State  functions  con- 
cerning the  militia,  and  he  referred  to  the  strengthening 
of  the  principle  of  national  conscription  by  the  Four- 
teenth Amendment  which  "broadened  the  national  scope 
of  the  Government  under  the  Constitution  by  causing 
citizenship  of  the  United  States  to  be  paramount  and 
dominant  instead  of  being  subordinate  and  deriva- 
tive, .  .  ."  In  1918,  when  this  opinion  of  a  unanimous 
court  was  announced,  the  country  was  much  more  willing 
to  receive  it  than  in  Civil  War  times."'" 

"Selective  Draft  Law  Cases  (Arver  vs.  U.  S.,  etc.),  245  U.  S.  3G6. 


CHAPTER  XII 

THE   POLICY   OF   CONFISCATION 

I.   The  confiscation  acts  of  1S61  and  1862 
II.   Process   of  instituting  and  conducting  confiscation 
cases 

III.  Duration   of   the   forfeiture:    Reversionary   rights   in 

confiscated  property 

IV.  Extent  and  results  of  confiscatioD 


One  of  the  questionable  war  measures  adopted  by  both 
sides  in  the  Civil  War  was  the  confiscation  of  the  prop- 
erty of  individuals  adhering  to  the  enemy.^  Two  laws 
for  the  forfeiture  of  enemy  property  were  passed  by  the 
Confederate  Congress,  and  the  Government  of  the 
United  States  retaliated  with  two  confiscation  acts. 
Thus  both  belligerents  carried  the  effects  of  war  over 
into  the  field  of  civil  life,  and  punished  non-combatants 
with  legal  processes  which  are  now  discredited. 

By  a  Confederate  statute  of  May  21,  1861,  debts  due 
to  Northerners  were  confiscated;  and  a  further  act  of 
August  30,  1861,  sequestered  the  property  of  "aliens," 


^  The  basis  for  Chapters  XII,  XIII,  and  XIV  is  the  writer's  study  en- 
titled "The  Confiscation  of  Property  during  the  Civil  War,"  a  doctoral 
thesis  presented  to  the  University  of  Chicago  in  1911.  Only  a  minor 
part  of  the  thesis  was  printed.  The  writer  has  published  two  articles 
on  this  subject:  "Some  Legal  Aspects  of  the  Confiscation  Acts  of  the 
Civil  War,"  Am.  Hist.  Rev.,  XVIII,  79-96,  and  "Captured  and  Aban- 
doned Property  during  the  Civil  War,"  ibid.,  XIX,  65-79. 

275 


276  THE  CONSTITUTION  UNDER  LINCOLN 

by  which  was  meant  those  adhering  to  the  Union.-  In 
passing  the  act  of  August  6,  1861,^  the  United  States 
Congress  began  its  confiscation  poUcy  with  a  measure  of 
limited  scope  directed  only  against  property  devoted  to 
hostile  use.  Condemnation  of  such  property  was  to 
take  place  in  the  district  or  circuit  courts  of  the  United 
States.  The  district  attorney  might  institute  proceed- 
ings; or  any  person  might  file  an  information  with  the 
attorney,  in  which  latter  case  half  the  proceeds  went 
to  the  informer.-*  Though  this  measure  was  eclipsed  by 
the  more  comprehensive  act  of  July  17,  1862,  it  remained 
law  during  the  w'ar. 

The  Federal  confiscation  law  of  1862  differed  both  in 
degree  and  in  kind  from  that  of  1861;  for  it  was  a 
punitive  measure  directed  against  persons,  taking  their 
property  by  way  of  penalty,  and  it  embraced  in  its 
terms  all  those  who  adhered  to  the  "rebellion."  The 
law  was  under  consideration  during  the  whole  of  the 
long  session  of  the  Thirty-Seventh  Congress,  and  an 
amazing  volume  of  oratory  was  poured  forth  in  its  dis- 
cussion. Each  member  of  House  and  Senate,  it  seemed, 
had  a  confiscation  speech  in  his  pocket;  and  so  numer- 
ous W'Cre  the  orations  on  this  subject  that  many  mem- 
bers had  to  be  content  with  "leave  to  print"  their  re- 
marks in  the  appendix  of  the  Congressional  Globe,  with 
the  privilege  of  distributing  printed  copies  to  their  con- 
stituents.   The  spirit  animating  the  radicals  who  urged 

'For  the  Confederate  confiscation  acts,  see  Stat,  at  Large,  Proins'l 
Gov't  of  C.  S.  A.,  201;  O.  R.,  Ser.  IV,  Vol.  1,  p.  586;  McPherson, 
Political  History  of  the  Rebellion,  205;  Moore.  Rebellion  Record,  IV, 
P.  7,  VI,  Diary  of  Events,  13;  XII,  Doc.  3  and  Doc.  34;  J.  W.  Draper, 
Civil  War  in  America,  I,  537;  J.  C.  Schwab,  The  Confederate  States 
of  America,  A  Financial  and  Industrial  History  of  the  South  during 
the  Ciml  War,  110  et  seq. 

•  U.  S.  Stat,  at  Large,  XII,  319. 

*A  later  portion  of  the  act  related  to  slaves  used  in  hostilities  against 
the  United  States.    {Infra,  p.  357.) 


THE  POLICY  OF  CONFISCATION         277 

confiscation  was  expressed  by  Senator  Morrill  who  de- 
clared that  "clemency  on  the  lips  of  an  American  Sen- 
ator to  the  malignant  enemy  of  the  Republic  is  cruelty 
to  its  friends."  ^  There  was  much  extreme  talk  about 
punishing  "rebels,"  crippling  the  financial  resources  of 
the  Confederacy,  and  increasing  Federal  revenue;  but  on 
constitutional  and  legal  matters  there  was  little  clear 
reasoning.  To  raise  such  points  as  the  war  power  of 
Congress,  the  status  of  the  "rebels,"  the  legal  character 
of  the  Civil  War,  the  restrictions  of  the  attainder  clause 
of  the  Constitution,  or  the  belligerent  rights  as  against 
the  municipal  power  of  Congress,  was  to  reveal  a  de- 
plorable confusion  of  logic,  and  a  jarring  of  opinions 
even  among  those  who  voted  together.  United  in  their 
notion  as  to  the  principal  result  sought,  the  supporters 
of  confiscation,  it  would  seem,  had  as  many  different 
views  regarding  the  constitutional  justification  of  their 
measure  as  there  were  individual  speakers. 

To  the  opponents  of  confiscation,  who  were  chiefly 
border-State  men  and  Democrats,  such  an  extreme  meas- 
ure seemed  a  shocking  thing.  "Such  a  sweeping  proposi- 
tion," said  Senator  Carlile,  "so  unjust  and  cruel  a 
measure,  one  better  calculated  to  continue  the  war  for- 
ever and  exhaust  the  whole  country,  never  has  been 
in  the  history  of  the  world,  and  I  predict  never  will  be 
again,  proposed  to  any  legislative  assembly  representing 
a  civilized  community."  ^  "The  sure  and  certain  effect 
of  this  bill,"  said  Senator  Browning,  "would  be  to  make 
peace  and  reunion  an  impossible  thing." ''  He  argued 
that  a  majority  of  those  acting  against  the  Union  were 
constrained  by  circumstances  beyond  their  control;  and 
he  was  in  favor  of  measures  that  would  win  back  his 

"Cong.  Globe,   37  Cong.,  2  sess.,  p.  1074. 
'Ibid.,  p.  1157. 
'Ibid.,  p.  1137. 


278  THE  CONSTITUTION  UNDER  LINCOLN 

"brethren  of  the  South"  rather  than  fill  them  with  de- 
spair. He  further  argued  that  the  bill  violated  the 
attainder  clause  of  the  Constitution,  and  that  measures 
should  be  taken  against  slavery  as  the  sole  cause  of 
the  war  rather  than  indiscriminately  against  all  prop- 
erty. Finally,  after  long  months  of  debate  during  which 
each  house  was  considering  its  own  bill,  conflicting  pur- 
poses were  adjusted  by  a  conference  committee  of  the 
Senate  and  House;  and  a  measure  was  thus  evolved 
which  passed  the  two  branches  of  Congress.^ 

As  we  have  already  seen,  the  law  thus  passed  was  at 
once  a  treason  act  and  a  confiscation  act.  The  first  four 
sections,  relating  to  the  crimes  of  treason  and  rebellion 
and  prescribing  punishments,  have  been  treated  in  a 
previous  chapter.^  Under  sections  5  and  6  the  property 
of  certain  designated  classes  of  "rebels"  was  made  sub- 
ject to  forfeiture.  A  distinction  was  made  between  two 
main  groups.  The  property  of  all  oflicers  of  the  Con- 
federate Government  whether  civil,  military,  or  naval, 
was  declared  seizable  at  once  without  qualification. 
Other  persons  in  any  part  of  the  L'^nited  States  who 
were  supporting  the  "rebellion"  were  to  be  warned  by 
proclamation  and  given  sixty  days  in  which  to  return 
to  their  allegiance;  if  they  failed  to  do  so,  their  prop- 
erty was  to  be  confiscated.  Proceedings  against  sus- 
pected property  were  to  be  instituted  in  the  Federal 
district  or  territorial  courts,  and  the  method  of  trial  was 
to  conform  as  nearly  as  might  be  to  that  of  revenue 
or  admiralty  cases.  If  found  to  belong  to  a  person  who 
had  engaged  in  the  "rebellion,"  or  who  had  given  it  aid 
and  comfort,  the  goods  were  to  be  condemned  "as  en- 
emies'  property"   and   to  become   the  property  of  the 


'  U.  S.  Stat,  at  Large,  XII,  589. 
•Chapter  JV 


THE  POLICY  OF  CONFISCATION         279 

United  States.^''  The  proceeds  were  to  be  paid  into  the 
treasury  of  the  United  States  and  apphed  to  the  support 
of  the  armies.  Three  sections  referring  to  slaves  do  not 
concern  us  here.  By  section  13  the  President  was  au- 
thorized to  pardon  those  engaging  in  the  rebellion.^ ^ 

It  is  a  fact  of  considerable  interest  that  the  second 
confiscation  bill  barely  escaped  the  presidential  veto.^^ 
Lincoln  had  never  been  enthusiastic  for  confiscation  and 
he  objected  to  several  features  of  the  proposed  measure. 
He  therefore  prepared  a  rather  elaborate  veto  message.^^ 
His    strongest    objection    was    that    the    title    to    real 

"The  "second  Confiscation  Act"  covered  three  subjects:  (1)  the 
punishment  of  '"treason"  and  "rebellion,"  sections  1  to  4;  (2)  confisca- 
tion of  property,  sections  5  to  8;  and  (3)  emancipation  of  slaves,  sec- 
tions 9  to  12.  Section  13  related  to  pardon  and  section  14  to  the 
courts'  power  to  carry  the  act  into  effect.  A  careful  study  shows  that 
these  three  parts  of  the  act  were  by  no  means  closely  articulated.  For 
instance,  the  act  nowhere  attached  any  confiscation  or  forfeiture  to  a 
conviction  for  treason  or  rebellion.  The  penalty  for  treason  was  de- 
clared to  be  either  death  or  a  composite  penalty  of  fine,  imprisonment, 
emancipation  of  slaves  and  disqualification  from  office  holding.  Con- 
fiscation was  provided  not  as  a  part  of  a  criminal  sentence  against  the 
person,  but  as  a  separate  and  distinct  action  m  rem  against  "enemies' " 
(not  traitors')  property.  Forfeiture  did  not  begin  with  an  indictment, 
but  with  a  libel  of  information  as  in  revenue  or  admiralty  cases.  Fur- 
thermore, as  we  shall  note  later,  the  process  prescribed  for  confiscating 
property  was  inapplicable  to  the  case  of  slaves  (e.g.,  the  condemned 
property  was  to  be  "sold") ;  and  the  act  was  altogether  hazy  as  to 
the  method  by  which  the  liberation  of  slaves  was  to  be  accomplished. 
See  infra,  Chapter  XV,  and  note  the  interesting  remarks  of  Henry 
Winter  Davis  of  Maryland  in  the  Congressional  Globe,  38  Cong.,  1 
sess.,  p.  214. 

"  In  the  Reconstruction  period,  when  many  eccentric  things  were  done, 
Congress  repealed  this  section  (Act  of  Jan.  21,  1867,  U.  S.  Stat,  at  Large, 
XIV,  377) ;  but  neither  the  repeal  nor  the  original  section  affected  the 
pardoning  power  of  the  President,  which  is  derived  not  from  Congress 
but  from  the  Constitution. 

"  One  of  Lincoln's  most  valued  friends,  Senator  Browning  of  Illinois, 
advised  the  President  to  veto  the  confi.scation  bill  as  unconstitutional 
and  as  an  offense  to  the  border  States.  (MS.  Diary  of  On'ille  H. 
Browning,  July  14,  1862.) 

"Notwithstanding  the  fact  that  he  signed  the  bill,  Lincoln  trans- 
mitted his  veto  message  to  Congress.  (Senate  Journal,  July  17,  1862, 
pp.  872-874;  Nicolay  and  Hay,  Works,  VII,  280-286.) 


280  THE  CONSTITUTION  UNDER  LINCOLN 

estate  was  to  be  forever  extinguished.  "For  the  causes 
of  treason,"  he  pointed  out,  "and  the  ingredients  of 
treason  not  amounting  to  the  full  crune,"  the  bill  de- 
clared forfeitures  extending  beyond  the  lives  of  the 
guilty  parties.  This  feature  of  the  bill  the  President 
regarded  as  a  violation  of  the  attainder  clause  of  the 
Constitution.  The  President's  next  objection  showed 
an  equally  keen  insight  into  legal  points.  He  argued 
that  by  proceedings  in  rem  the  act  would  forfeit  prop- 
erty "without  a  conviction  of  the  supposed  criminal,  or 
a  personal  hearing  given  him  in  any  proceeding."  The 
act  was  punitive,  yet  the  proceedings  were  all  against 
the  property,  as  in  admiralty  cases.  This  was  unsatis- 
factory to  the  President,  who  felt  that  the  owners  should 
have  a  personal  hearing. 

When  it  was  known  in  Congress  that  the  President 
intended  to  veto  the  bill,  a  rather  unusual  proceed- 
ing was  resorted  to.  A  joint  resolution,  "explanatory" 
of  the  original  measure,  was  rushed  through  both  houses, 
declaring  that  the  law  was  not  to  be  construed  as  ap- 
plying to  acts  done  prior  to  its  passage,  nor  as  work- 
ing "a  forfeiture  of  the  real  estate  of  the  offender 
beyond  his  natural  life."  ^*  Although  this  left  an 
important  part  of  his  objections  untouched — i.e.,  as  to 
the  condemnation  of  property  without  allowing  a  per- 
sonal hearing  to  the  supposed  criminal — Lincoln  ap- 
proved the  measure  in  its  modified  form;  and  on  the 
last  day  of  the  session,  July  17,  1862,  he  signed  the 
act  and  the  explanatory  resolution  "as  .  .  .  substan- 
tially one." 

II 

These  widely  different  measures  of  confiscation  were 
put  into  operation  side  by  side,  and  remained  so  dur- 

"  V.  S.  Slat,  at  Large,  XII,  C27. 


THE  POLICY  OF  CONFISCATION         281 

ing  the  war.  Though  the  act  of  1862  was  far  more 
sweeping  and  drastic  than  that  of  1861,  yet  it  did  not 
entirely  supersede  the  earlier  law;  and  prosecutions  in 
a  given  case  might  be  instituted  under  either  act,  or 
under  both.^^  By  the  terms  of  each  of  the  statutes  the 
forfeiture  of  property  was  made  a  strictly  judicial  proc- 
ess, enforced  through  the  Federal  courts  under  the  direc- 
tion of  the  Attorney  General  and  the  district  attorneys. 
The  Senate  substitute  bill  had  contemplated  a  special 
board  of  commissioners  to  enforce  confiscation,  but  this 
plan,  which  would  have  provided  personnel  and  adminis- 
trative machinery  intended  particularly  for  the  seizure 
of  property,  was  not  followed. 

In  beginning  suit,  a  libel  of  information,  analogous 
to  that  directed  against  smuggled  goods,  would  be  filed 
by  the  district  attorney.  A  monition  or  public  adver- 
tisement would  then  be  issued  by  the  marshal,  summon- 
ing the  owner  to  appear  in  court  and  establish  his 
loyalty.  If  the  owner  appeared  to  answer  the  libel, 
a  hearing  of  both  sides  would  usually  follow,  though 
there  were  cases  where  the  owner  was  not  permitted 
any  hearing.  Where  the  owner  did  not  appear,  an  ex 
parte  hearing  was  conducted.  In  case  of  condemnation, 
the  marshal  would  be  directed  to  sell  the  property  at 
pubhc  auction,  turning  the  proceeds,  after  payment  of 
costs,  into  the  public  treasury. 

The  methods  by  which  the  Government  obtained  in- 
formation concerning  confiscable  property  were  vari- 
ous.^^  Written  depositions  were  sometimes  taken  by 
United  States  commissioners,  but  much  of  the  informa- 
tion came  from  less  regular  and  reliable  sources.    A  citi- 

S°In  the  Wiley  case  (27  Fed.  Cas.  337)  the  libel  was  under  the  act 
of  1861  and  the  proofs  under  that  of  1862. 

"  The  instances  here  cited  are  selected  from  data  found  in  the  cor- 
respondence of  the  Attorney  General's  office. 


282  THE  CONSTITUTION  UNDER  LINCOLN 

zen  of  Philadelphia,  to  take  a  typical  instance,  volun- 
teers information  concerning  "a  million  dollars  invested 
in  the  North  by  citizens  of  Charleston,  S.  C,"  with  the 
suggestion  that  this  property  is  "probably  confiscable," 
and  that  further  particulars  will  be  gladly  given.  Or, 
again,  letters  are  received  from  citizens  in  Illinois  and 
Wisconsin,  alleging  that  the  Hon.  J.  C.  Breckinridge  of 
Kentucky,  the  late  Vice  President,  has  considerable  lands 
in  those  States,  against  which  the  Government  should 
proceed.  A  district  attorney  in  Minnesota  proposes  a 
trip  to  Newberne,  N.  C,  for  which  he  requests  a  Gov- 
ernment pass  that  he  may  obtain  evidence  against  sev- 
eral persons  of  high  rank  who  own  valuable  property 
in  Minnesota.  The  Union  authorities  intercept  a  letter 
written  by  a  "rebel"  prisoner  in  Washington  to  his  uncle 
in  Germany,  and  discover  that  this  "rebel"  owns  con- 
siderable property  in  Memphis,  Tennessee,  then  in  the 
Union  lines.  A  dispatch  is  received  by  the  L'nited 
States  consul  at  St.  Petersburg  regarding  "rebel"  prop- 
erty in  New  Orleans,  and  the  information  is  transmitted 
by  Secretary  of  State  Seward  to  Attorney  General  Bates. 
These  scattered  instances  suggest  how  various  were  the 
sources,  and  how  indirect  the  routes  by  which  informa- 
tion came  into  the  hands  of  the  Government  for  pur- 
poses of  confiscation.  Sometimes  useful  clues  would  be 
secured  in  this  irregular  way,  but  no  legal  action  could 
be  safely  begun  without  a  laborious  search  for  such 
records  of  ownership  and  such  proof  of  disloyalty  as 
would  afford  a  definite  basis  for  prosecution. 

It  was  under  great  difficulties  that  the  law  officers  per- 
formed their  unwelcome  duty  of  enforcing  the  confisca- 
tion laws.  Confused  by  perjolexing  legal  questions,  the 
district  attorneys  received  little  help  from  the  Attorney 
General,  who  invariably  "declined  to  advise  the  law  offi- 
cers ,  .  .  as  to  what  constitutes  a  proper  case  for  action 


THE  POLICY  OF  CONFISCATION         283 

under  the  law."  ^"^  The  local  oflficers,  thus  left  to  their 
own  responsibility,  naturally  hesitated  to  begin  suit ;  and 
this  difficulty  was  augmented  by  the  lack  of  pro- 
vision for  defraying  the  expense  of  preparing  suit  in 
cases  where  the  Government  should  fail  to  obtain  judg- 
ment. The  very  correctness  and  completeness  of  ju- 
dicial procedure  was  an  obstacle  in  a  strenuous  time 
when  things  had  to  be  done  quickly  and  when  a  dilatory 
execution  would  defeat  the  whole  purpose  of  the  law. 
It  was  natural  under  the  circumstances  for  an  impatient 
general  or  provost  marshal  to  take  the  law  into  his  own 
hands  and  thus  become  involved  in  a  dispute  with  the 
judiciary.  These  vigorous  men  regarded  confiscation  as 
a  war  measure,  and  proceeded  to  carry  it  out  as  such.^^ 
It  was  on  the  whole  fortunate  that  so  formidable  a 
power,  and  one  that  might  have  been  so  easily  abused, 
had  been  carefully  guarded  by  Congress. 

In  determining  the  authority  of  the  court  in  any  given 
case  of  confiscation,  the  leading  factor  was  the  location 


"  Acting  Attorney  General  T.  J.  Coffee  to  R.  I.  Milton,  U.  S.  Com- 
missioner, Albany,  N.  Y.,  Sept.  2,  1861 :  Attorney  General's  Letter 
Books.  (A  series  of  such  letters  was  issued  to  district  attorneys  and 
marshals  during  the  same  month.     The  one  cited  is  merely  typical.) 

"  Instances  of  military  efforts  to  enforce  confiscation  were  numerous. 
When  a  provost  marshal  at  St.  Louis  seized  securities  owned  by  a  sus- 
pected "rebel,"  his  action  was  denounced  by  the  acting  Attorney  Gen- 
eral as  "unjustifiable,  absurd,  illegal,  and  null."  (Acting  Attorney 
General  Coffee  to  Acting  Secretary  of  War  Scott,  Nov.  12,  1861,  At- 
torney General's  Letter  Books.)  An  attempt  by  the  military  governor 
of  the  District  of  Columbia  to  seize  the  furniture  of  John  A.  Campbell 
led  to  a  miniature  state  of  war  between  court  officers  attempting  to 
execute  a  writ  of  replevin  to  restore  the  property  and  a  military  force 
of  six  men  who  guarded  it.  {House  Ex.  Doc.  No.  44,  37  Cong.,  3  sess.) 
Determined  attempts  were  made  by  General  Wallace  in  Maryland  and 
General  Butler  in  Louisiana  to  carry  out  the  confiscation  acts,  and  the 
naval  authorities  also  made  extensive  seizures  in  their  river  expeditions. 
kO.  R.,  Ser.  Ill,  Vol.  4,  pp.  407  et  seq.,  Ser.  I,  Vol.  15,  pp.  571  et  seq.; 
Ser.  I,  Vol.  34,  pt.  1,  p.  213;  Mrs.  Alexander's  Cotton,  2  Wall.  404-408; 
Cong.  Globe,  37  Cong.,  3  sess.,  pp.  1431  et  seq.) 


284  THE  CONSTITUTION  UNDER  LINCOLN 

of  the  property.  Jurisdiction,  in  other  words,  depended 
on  situs.  The  court  could  proceed  against  only  such 
property  as  lay  within  the  bounds  of  its  district.  A 
district  court  in  New  York,  for  instance,  could  not 
acquire  jurisdiction  over  the  stock  of  an  Illinois  cor- 
poration.^^ Actual  confiscation  was  therefore  limited  to 
those  districts  where  Federal  courts  were  in  operation; 
and  naturally  the  greater  amount  of  the  property  seized 
during  the  war  was  located  in  the  North,  though  owned 
by  ''rebels." 

Actual  seizure  or  "arrest"  of  the  property  was  neces- 
sary in  order  to  begin  suit,  but  minor  irregularities  in 
the  marshal's  action  were  not  construed  as  fatal  defects. 
Since  manual  seizure  was  impossible  in  the  case  of  intan- 
gible property,  a  sort  of  "stoppage  at  the  source"  was 
adopted.  The  court  ignored  the  paper  evidence  of  the 
property  in  the  hands  of  the  owner,  and  proceeded  by 
means  of  attachments  upon  those  from  whom  the  obliga- 
tion was  due.  A  promissory  note  would  be  "seized"  by 
notifying  the  signer,  possession  of  the  note  itself  being 
unnecessary.  Where  the  property  consisted  of  commer- 
cial stock,  seizure  meant  serving  notice  upon  the  cor- 
poration. In  the  case  of  a  debt  owed  by  an  individual, 
process  was  served  upon  the  debtor,  subjecting  him  to 
the  order  of  the  court  with  regard  to  the  debt.  A  debt 
owed  by  a  city  could  be  seized  by  serv'ing  notice  upon 
the  proper  oflacer  of  the  city.  For  the  seizure  of  a  de- 
posit due  by  a  Northern  to  a  Southern  bank,  an  attach- 
ment upon  the  deposit  with  notification  to  one  of  the 
officers  of  the  Southern  bank  was  sufficient.-'^ 


"U.  S.  vs.  1756  Shares  of  Stock,  27  Fed.  Cas.  337. 

"'Concerning  procedure  in  confiscation  cases,  sec  Tyler  vs.  Dcfrees, 
78  U.  S.  331 ;  Instructions  of  Attorney  General  Bates  to  district  at- 
torneys, Ann.  Cyc,  1863,  p.  219;  Bragg  vs.  Lorio,  4  Fed.  Cas.  2;  Miller 
vs.  U.  S.,  78  U.  S.  268. 


THE  POLICY  OF  CONFISCATION         285 

In  developing  a  procedure  for  the  trial  of  confiscation 
cases,  the  courts  were  confronted  with  the  fact  that  for- 
feiture is  ordinarily  a  proceeding  in  rem  and  that  ad- 
miralty procedure  was  indicated  in  both  of  the  acts, 
while  at  the  same  time  the  punitive  character  of  the  sec- 
ond Confiscation  Act  seemed  to  call  for  those  features 
of  criminal  procedure  that  are  intended  as  safeguards  for 
the  accused.  Strict  conformity  to  admiralty  rules  was 
given  up  and  the  advantages  of  a  common  law  remedy 
were  extended  to  the  defendant.  Judgments  of  lower 
courts  were  sometimes  overruled  by  the  Supreme  Court 
on  the  ground  that  the  proceedings  had  been  erroneously 
conducted  on  the  admiralty  instead  of  the  common  law 
side  of  the  court. ^^  The  main  resemblance  to  admiralty 
practice  lay  in  the  detailed  process  of  instituting  suit — 
i.e.,  the  filing  of  the  libel,  the  seizure  by  the  marshal,  the 
publication  of  the  monition,  and  the  summoning  of  the 
owner — and  in  the  ex  parte  hearing  in  case  of  default. 

*^The  chief  reason  for  insisting  on  the  common  law  remedy  was  to 
preserve  the  right  of  trial  by  jury.  It  was  therefore  held  that,  in  cases 
where  either  party  should  demand  it,  issues  of  fact  should  be  so  tried. 
This  point  was  definitely  expressed  in  the  case  of  United  States  vs. 
Athens  Armory:  "This  court  [i.e.,  the  Supreme  Court]  cannot  under- 
take to  say  that  the  national  legislature  in  passing  this  statute 
[the  act  of  1862]  contemplated  the  expansion  of  the  jurisdiction  of  the 
admiralty  so  far  beyond  what  was  understood  and  intended  by  it  at 
the  time  of  the  formation  of  the  Constitution,  as  to  withdraw  from 
the  suitor,  in  a  seizure  like  this,  the  right  of  a  trial  by  jury,  and  to 
transfer  the  determination  of  the  cause  to  the  breast  of  a  single  judge." 
(24  Fed.  Cas.  881.)  This  preservation  of  a  common  law  remedy  was 
demanded  not  only  on  the  grounds  of  general  justice  but  also  as  a 
compliance  with  that  clause  of  the  Judiciary  Act  of  1789  which  pro- 
vided that  practice  in  the  district  courts  in  connection  with  for- 
feitures should  be  such  as  to  save  to  suitors  in  all  cases  the  right  to  a 
common  law  remedy,  where  the  common  law  is  competent  to  give  it. 
W.  S.  Stat,  at  Large,  I,  76;  The  Case  of  Moses  Taylor,  71  U.  S.  411. 
See  also:  Union  Ins.  Co.  vs.  U.  S.,  6  Wall.  759;  Armstrong's  Foundry, 
6  Wall.  767;  U.  S.  vs.  Hart,  6  Wall.  770,  773  n.;  Morris'  Cotton,  8 
Wall.  507.) 


286  THE  CONSTITUTION  UNDER  LINCOLN 

in 

When  the  actual  effects  of  forfeiture  came  to  be  deter- 
mined in  the  courts,  there  were  various  problems  that 
had  to  be  settled.  A  matter  of  considerable  dispute,  for 
instance,  was  the  question  as  to  the  duration  of  the  for- 
feiture under  the  act  of  1862.  Though  Congress  had 
taken  pains  to  be  explicit  on  this  point,  passing  an  ex- 
planatory resolution  which  limited  the  forfeiture  to  the 
offender's  lifetime,  there  still  remained  some  doubt  as  to 
whether  decrees  of  confiscation  involved  surrender  of  the 
full  title  or  of  merely  a  life  interest.-^  This  difficulty 
was  met  by  the  Supreme  Court  in  the  case  of  Bigelow  vs. 
Forrest,  in  which  it  was  decided  that  a  decree  of  con- 
demnation and  order  of  sale  under  the  second  Confisca- 
tion Act  conveyed  only  a  "right  to  the  property  .  .  . 
terminating  with  the  life  of  the  person  for  whose  act  it 
had  been  seized."  -^  No  title  could  therefore  be  con- 
ferred which  would  outlast  the  life  of  the  original 
offender. 

As  to  forfeitures  under  the  act  of  1861,  their  effect  was 
held  to  be  absolute,  permitting  no  recovery  of  the  prop- 
erty by  the  owner's  heirs.-^     The  reasoning  of  the  Su- 


"  A  Federal  judge  in  Virginia  held  that  the  absolute  forfeiture  of  real 
estate  was  in  kcejiing  with  the  intention  of  the  Constitution  and  the 
statute.  Congress  did  not  mean,  he  declared,  that  the  "traitor"  should 
merely  surrender  a  life  interest,  but  rather  that  the  forfeiture  must  be 
perfected  during  his  life.  As  for  the  joint  resolution,  he  interpreted  it 
as  merely  intended  to  keep  the  legislation  within  the  constitutional 
rights  of  Congress  which  permit  no  att^iinder  of  treason  that  shall  work 
corruption  of  blood  or  forfeiture  except  during  the  life  of  the  person 
attainted.  In  his  mind  the  words  "except  during"  applied  to  the 
specific  legal  act  by  which  the  forfeiture  was  accomplished,  rather  than 
to  its  duration.  (Opinion  of  Judge  Underwood  in  the  Hugh  Latham 
case:     ylnn.  Cyc,  1863,  p.  221.) 

"9  Wall.  339. 

•*Kirk  vs.  Lvnd,  lOG  U.  S.  315. 


THE  POLICY  OF  CONFISCATION         287 

preme  Court  in  this  connection  emphasized  the  difference 
in  the  nature  of  the  two  acts.  Whereas  proceedings 
under  the  act  of  1862  were  directed  against  the  owner 
because  the  statute  declared  his  acts  to  be  crimes,  the 
proceedings  under  the  act  of  1861  were  directed  merely 
against  the  property.  Nothing  was  said  about  treason  in 
the  earUer  act;  therefore  the  principles  of  attainder 
would  not  apply.  Condemnations  under  this  act  were 
based  upon  the  hostile  use  of  the  property,  and  were 
regarded  as  analogous  to  the  condemnation  of  goods  for 
smuggling.  This  interpretation  was  held  to  require  the 
whole  title  to  be  surrendered. 

Since  under  the  second  Confiscation  Act  the  forfeiture 
terminated  with  the  offender's  life,  a  further  question 
arose  as  to  his  ''reversionary  right."  A  deed  to  the  life 
estate  in  a  piece  of  realty  obtained  at  a  confiscation  sale 
would  not  carry  a  title  in  fee  to  the  property,  since  the 
heirs  of  the  "rebel"  owner  would  have  a  future  interest 
which  would  take  effect  upon  his  death.  Such  a  situa- 
tion affords  an  example  of  a  "reversion"  which  has  been 
defined  as  the  estate  left  in  a  party  after  he  has  con- 
veyed away  less  than  a  fee.  This  naturally  involves  a 
"reversionary  tenant" — i.  e.,  a  holder  of  the  future  rights 
which  revert  when  the  user's  interest  terminates. 

It  is  well  understood  in  realty  law  that  such  a  rever- 
sionary right  in  property  is  marketable,  and  may  be 
transferred.  The  question  arose  frequently  whether, 
after  confiscation  had  been  completed,  the  dispossessed 
"rebel"  could  still  consider  himself  as  the  holder  and 
possible  conveyer  of  that  remaining  share  in  the  estate 
which  subsisted  after  the  life  interest  had  been  trans- 
ferred. It  is  clear  that  if  he  could  convey  this  expec- 
tant right  the  penalty  of  forfeiture  would  be  much  less 
severe. 

In  dealing  with  this  phase  of  confiscation  the  Supreme 


288  THE  CONSTITUTION  UNDER  LINCOLN 

Court  reversed  its  own  position.  The  provision  limiting 
the  duration  of  the  forfeiture  was  at  first  interpreted  as 
an  advantage  to  the  heirs  alone;  and  it  was  held  in 
Wallach  vs.  Van  Riswick  -^  that  the  offender  had  no 
power  to  dispose  of  the  future  title  of  his  property.  This 
ruling  was  softened  after  the  war  by  an  opinion  to  the 
effect  that  the  disability  to  dispose  of  the  permanent 
title  was  removed  by  pardon;  and  finally,  the  court  criti- 
cized its  own  opinion  in  the  Wallach  case  and  held  that 
the  offender,  by  covenant  of  warranty,  could  convey  a 
permanent  future  assurance  of  title  which  would  hold 
good  against  the  claims  of  his  heirs.^® 


IV 

To  what  extent  were  the  confiscation  acts  enforced, 
and  how  much  property  was  confiscated?  The  answer 
to  this  question  seems  paradoxical ;  for  the  courts  handled 
a  considerable  volume  of  business  under  the  head  of  con- 
fiscation, and  yet  the  results  were  insignificant.  As  there 
were  hundreds  of  treason  indictments  but  no  punish- 
ments, so  there  were  many  confiscation  cases,  but  only  a 
small  amount  of  property  confiscated.^'    One  must  take 

»92  U.  S.  202. 

"Avengo  vs.  Schmidt,  113  U.  S.  293;  Shields  vs.  Schiff,  124  U.  S. 
351;  111.  Cent.  R.  R.  vs.  Bosworth,  133  U.  S.  92;  Jenkins  vs.  Collard, 
145  U.  S.  552. 

"  Of  the  eiphty-three  cases  of  confiscation  shown  on  the  dockets  of  the 
Federal  district  court  in  Indianapolis  from  September,  1862,  to  May, 
1865,  forty-four  resulted  in  forfeiture.  The  property  was  miscellaneous 
in  character,  including  considerable  movable  and  intangible  property 
besides  real  estate.  From  these  forfeitures  the  United  States  derived  the 
meager  sum  of  $5,737.  In  the  District  of  Columbia  from  May,  1863, 
when  condemnations  began,  to  September,  1865,  the  number  of  cases 
docketed  was  fifty-two,  and  the  number  of  forfeitures  twenty-seven. 
The  total  proceeds  amounted  to  $33,265.  These  data  were  derived 
from  the  Federal  court  records  at  Indianapolis  and  Washington,  from 
which  elaborate  notes  were  taken  by  the  writer. 


THE  POLICY  OF  CONFISCATION 


289 


Amounts  Deposited  in  the  United  States  Treasury  as  Net 

Proceeds  ob^  the  Confiscation  of  Property  under 

the  Act  of  July  17,  1862 


District 

Amount  deposited 
in  U.  S.  Treasury 

Amount  paid  to 

Assistant  U.  S. 

Treasurer  subject 

to  order  of  court 

New  York  

$19,614.84 
347.73 

11,000.00 

7,305.17 

242.21 

1,411.30 

4,853.57 

67,972.18 
6,737.99 
4,000.15 
7,195.53 

Delaware   

District  of  Columbia 

$33,265.48* 

West  Virginia  

Kentucky 

East  Tennessee 

East  Missouri 

Southern  Ohio 

Louisiana  

Indiana 

Michigan    

Arkansas    

Total 

$129,680.67 

$33,265.48 

*The  money  for  the  District  of  Columbia  cases  never  passed  to  the 
credit  of  the  United  States,  and  was  ultimately  restored  to  the  owners 
by  order  of  the  court. 

account  of  the  cases  "dismissed,"  "appealed,"  "settled 
without  suit,"  or  in  which  the  judgment  was  for  the 
owner;  and  even  in  the  case  of  forfeitures  the  proceeds 
turned  into  the  treasury  were  no  adequate  measure  of 
the  sums  involved.  The  costs  attached  to  the  filing  and 
publication  of  the  libel,  and  the  fees  charged  by  district 
attorneys,  clerks  and  marshals,  substantially  reduced  the 
balance  remaining  to  the  United  States.^^ 

"  In  one  of  the  District  of  Columbia  cases  the  marshal's  return  of 
sale  showed  that  the  property  yielded  $3600,  but  the  fees  of  the 
district  attorney,  marshal  and  clerk,  together  with  incidental  expenses, 
amounted  to  $664,  leaving  a  balance  of  $2936.  The  district  attorney 
alone  received  $340  in  this  case.  A  similar  return  in  Indiana  showed 
proceeds  of  $202,  and  the  costs  were  exactly  equivalent  to  the  proceeds. 
(U.  S.  District  Court  Files,  Washington  and  Indianapolis.) 


290  THE  CONSTITUTION  UNDER  LINCOLN 

The  table  on  page  289  indicates  in  condensed  form  the 
results  of  forfeitures  under  the  confiscation  statute  of 
1862  as  reported  by  the  Solicitor  of  the  Treasury  in 
1867.-"  There  are  certain  omissions  in  this  report.  None 
of  the  Virginia  confiscations  are  reported,  though  the  rec- 
ords show  1149  cases  at  Richmond,  Alexandria,  and 
Norfolk.  A  controversy  existed  regarding  the  Virginia 
forfeitures  owing  to  the  dishonesty  of  the  clerk  whose 
default  to  the  LTnited  States  treasury  amounted  to 
$110,000,  while  the  proceeds  he  turned  in  amounted  to 
$23,000.^**  In  addition,  there  were  many  forfeitures  in 
Kansas  but  no  proceeds  turned  in.^^  Moreover,  in  some 
districts  which  do  not  appear  in  the  Solicitor's  report, 
because  they  yielded  no  proceeds,  there  was  considerable 
activity  in  the  application  of  the  confiscation  laws.  Even 
in  such  sparsely  settled  regions  as  New  Mexico  ^-  and 
Nevada,^^  which  were  hardly  more  than  mining  camps, 
the  disturbance  due  to  attempted  confiscations  required 
considerable  attention  from  the  Washington  authorities. 
Cases  under  the  first  Confiscation  Act  are  also  omitted; 

"Sen.  Doc.  No.  68,  40  Cong.,  2  sess. 

'"Though  the  clerk  received  $93,937  as  proceeds  from  the  Richmond 
cases  and  $39,334  from  those  at  Norfolk,  his  only  return  to  the  United 
States  treasury  was  for  $23,000.  (U.  S.  treasur\'  warrant  No.  410, 
June  30,  1864.)  There  are  numerous  unpublished  papers  concerning 
the  Virginia  confiscations  in  the  "Cotton  and  Captured  Property  Rec- 
ord" of  the  Treasury  Department. 

^  The  correspondence  of  the  Attorney  General's  office  with  the 
Federal  district  attorney  in  Kansas  shows  that  the  attempts  made 
at  Washington  to  obtain  satisfactory  reports  of  the  Kans;\s  confisca- 
tion cases  were  unsucces.sful.  (Letter  Book  C  [1863],  Attorney  Gen- 
eral's Office,  p.  185.)  Inegularities  in  this  connection  were  commented 
upon  by  the  Supreme  Court  in  Osborn  vs.  U.  S.     (91  U.  S.  474.) 

"  Correspondence  regarding  seizures  in  New  Mexico  may  be  found 
in  the  Attorney  General's  files  midor  the  following  dates:  Sept.  27, 
1862;  Jan.  1,  1863;  Mar.  28,  1863;  Aug.  9,  1863.  A  considerable  con- 
troversy arose  over  the  seizure  of  the  mines  of  Sylvester  Mowry  in  this 
territory. 

"Report  of  T.  D.  Edwards,  District  Attorney  for  Nevada:  Attorney 
General's  Papers,  June  24,  1864. 


THE  POLICY  OF  CONFISCATION         291. 

but  these  were  much  less  numerous  than  those  under  the 
later  and  more  sweeping  act,  and,  being  closely  analogous 
to  the  seizure  of  contraband  property,  they  were  distinct 
in  principle  from  the  main  body  of  confiscations.  If  we 
make  allowances  for  these  omissions  we  find  that  ap- 
proximately $300,000  can  be  accounted  for  as  proceeds 
from  confiscation  sales.^'^ 

When  all  has  been  said,  however,  it  is  clear  that  there 
was  not  a  sufficiently  diligent  and  systematic  enforce- 
ment of  the  acts  to  produce  any  marked  effect  other  than 
a  feeling  of  irritation  and  injury  on  the  part  of  a  few 
despoiled  owners.^'^  Confident  predictions  of  the  sup- 
porters of  confiscation  as  to  the  material  weakening  of 
the  enemy's  resources  were  doomed  to  disappointment. 
Financially,  then,  confiscation  was  a  failure,  while  the 
other  purpose  of  the  act,  that  of  punishing  "rebels,"  was 
unequally  and  unjustly  accomplished.  No  practical 
object  in  the  prosecution  of  the  war  was  achieved  by 

**The  sum  to  be  added  from  Virginia  would  include  the  amount  of 
the  clerk's  default  (nearly  $110,000),  together  with  the  amount  which 
he  paid  into  the  treasury'  ($23,000),  this  latter  amount  not  having  been 
counted  in  the  Solicitor's  report.  The  amount  of  $30,000  may  be  al- 
lowed for  the  Kansas  cases. 

"  In  addition  to  seizures  under  the  confiscation  acts,  forfeitures  of 
property  were  effected  by  various  other  methods  during  the  Civil  War. 
Large  amounts  of  cotton  were  taken  under  the  Captured  and  Abandoned 
Property  Act,  and  much  real  estate  in  the  South  was  forfeited  for 
failure  to  pay  the  Federal  direct  tax.  (These  matters  are  discussed 
below,  in  Chapter  XIV.)  Military  captures  were  governed  by  the 
laws  of  war  which  protected  private  property  and  denounced  pillage. 
The  following  rule  was  included  in  the  instructions  issued  to  regulate 
the  conduct  of  the  Union  armies  in  the  field:  "Private  property,  unless 
forfeited  by  crimes  or  by  offenses  of  the  owner,  can  be  seized  only 
by  way  of  military  necessity  for  the  support  or  other  benefit  of  the 
Army  or  of  the  United  States."  The  owner  was  to  be  given  receipts  so 
that  he  might  at  a  future  time  obtain  indemnity.  (O.  R.,  Ser.  Ill, 
Vol.  3,  pp.  148  et  seq.,  152,  686.)  Property  was  condemned  for  viola- 
tion of  the  non-intercourse  regulations;  and  the  property  of  the  Con- 
federate Government,  on  this  continent  and  in  Europe,  was  appropriated 
wherever  possible.  No  formal  confiscation  was  necessary  for  such 
property.    (U.  S.  vs.  Tract  of  Land,  28  Fed.  Cas.  203.) 


292  THE  CONSTITUTION  UNDER  LINCOLN 

appropriating  the  private  property  of  a  few  unoffending 
noncombatants.  The  whole  experience  pertaining  to 
the  Civil  War  confiscations  was  such  as  to  condemn  the 
policy  of  promoting  war  by  extreme  punitive  measures 
for  the  coercion  of  individuals. 


CHAPTER  XIII 

THE   RIGHT   OF    CONFISCATION 

I.   Position  of  the  Supreme  Court  regarding  the  belliger- 
ent right  of  confiscation 
II.   Views  of  authorities  on  international  law 

III.  Opinions  of  American  jurists 

IV.  Special  case  of  the  confiscation  of  debts 
V.   The  "rebel's"  standing  in  court 

VI.   Constitutionality  of  the  Confiscation  Acts 

We  turn  now  to  some  of  the  broader  questions  of 
right  and  justice  which  the  confiscation  policy  involved. 
Opinion  on  this  subject  was  most  diverse  at  the  very- 
time  when  the  cases  were  most  numerous,  and  when, 
therefore,  the  pressure  upon  the  judicial  authorities  was 
heaviest.  The  final  settlement  of  these  mooted  ques- 
tions did  not  occur  until  after  the  war;  in  some  cases  so 
long  afterward  that  the  issue  was  practically  dead,  and 
little  benefit  could  be  derived  from  the  decisions  as 
guides  to  the  lower  tribunals.  When  during  the  war  we 
find  doubt  on  such  fundamental  points  as  the  constitu- 
tionality of  the  law  itself,  and  the  question  as  to  whether 
a  supposed  "rebel"  could  be  heard  in  his  own  defense, 
we  need  no  longer  wonder  that  judicial  action  in  these 
cases  was  so  often  unsatisfactory.  If  in  addition  we 
remember  that  during  the  war  both  Congress  and  the 
courts  did  their  work  under  heavy  pressure,  and  some- 
times in  haste  and  confusion,  we  can  better  under- 
stand such  miscarriages  of  justice  as  the  confiscation  acts 
produced, 

?93, 


294  THE  CONSTITUTION  UNDER  LINCOLN 


When  we  come  to  consider  the  right  of  a  belHgerent 
under  international  law  to  confiscate  enemy's  property, 
we  are  confronted  with  a  difference  of  opinion  among 
authorities,  and  a  divergence  between  the  abstract  legal 
rule  and  the  actual  modem  practice  of  leading  nations. 
While  the  confiscation  policy  was  under  discussion  both 
sides  appealed  to  the  law  of  nations  in  support  of  their 
contentions.  As  is  usual  in  such  controversies,  much 
would  have  been  gained  if  the  direct  issue  had  been 
clearly  stated  and  kept  in  mind.  Freed  from  its  entan- 
glements, the  question  amounts  to  this:  Has  a  belliger- 
ent in  a  public  war  the  right  under  the  law  of  nations 
to  confiscate  private  property  within  its  jurisdiction  be- 
longing to  individuals  among  the  enemy?  In  its  actual 
discussion,  however,  the  issue  was  confused;  and  it  is 
necessary  to  take  account  of  the  misapprehensions  and 
inaccuracies  as  well  as  the  reasonable  differences  of 
opinion  among  the  legislators  in  order  to  assess  the  con- 
fiscation debates  at  their  true  value. 

Throughout  the  discussion  there  was  commonly  a 
failure  to  discriminate  between  a  general  confiscation  of 
property  within  the  jurisdiction  of  the  confiscating  gov- 
ernment, and  the  treatment  accorded  by  advancing 
armies  to  private  property  found  within  the  limits  of 
military  occupation.^    Opponents  of  confiscation  errone- 

*The  argument  of  Garret  Davis  of  Kentucky  in  the  Senate  illus- 
trates this  erroneous  use  of  authorities.  Speaking  on  the  Senate  bill, 
he  quoted  Whcaton  as  follows:  "Private  property  on  land  is  exempt 
from  confiscation  with  the  exception  of  such  as  may  become  booty  in 
special  cases  .  .  .  and  of  military  contributions.  This  exemption  ex- 
tends even  to  an  absolute  .  .  .  conquest  of  the  enemy's  countr>'."  It 
is  plain  that  Wheaton  here  referred  to  military  seizure.  (Cong.  Globe, 
April  22,  1862,  37  Cong.,  2  sess.,  p.  1759;  Wheaton,  International  Law 
[Boyd's  3d  ed],  467.) 


THE  RIGHT  OF  CONFISCATION  295 

ously  appealed  to  the  general  rule  exempting  private 
property  on  land  from  the  sort  of  capture  which  similar 
property  must  suffer  at  sea,  and  the  substantial  merits 
of  their  main  case  were  thus  obscured  by  irrelevant  argu- 
ments. The  exemption  of  private  property  on  land  is 
a  principle  governing  armies  in  their  operations.  The 
illegality  of  military  capture  on  land  analogous  to  prizes 
at  sea  was  so  obvious  and  so  well  recognized  that  it 
would  hardly  require  continual  reaffirmation.  This  sort 
of  capture  was  altogether  distinct  from  forfeitures  under 
the  confiscation  acts,  by  which  the  Government  attacked 
through  its  courts  such  enemy  property  as  might  be 
available  within  its  limits.^  It  is  this  general  forfeiture 
by  judicial  process  which  should  be  borne  in  mind  while 
discussing  the  belligerent  right  of  confiscation  as  applied 
during  the  Civil  War. 

The  Supreme  Court  in  the  leading  confiscation  case, 
Miller  vs.  United  States,  construed  the  acts  as  the  exer- 
cise of  a  war  power,  not  as  a  municipal  regulation.^ 
Without  arguing  the  points  of  law  involved,  the  court 
plainly  rested  the  authorization  for  the  acts  upon  the 
law  of  nations.  On  this  broad  basis  confiscation  was  sus- 
tained as  "an  undoubted  belligerent  right."  Stress  was 
laid  upon  the  use  of  the  expression  "enemies'  property"  * 
in  the  act  of  1862.  The  fact  that  the  earlier  sections  of 
the  act  referred  to  treason  and  rebellion  was  not  under- 


*This  citation  of  the  rule  against  military  captures  as  if  it  applied  to 
forfeitures  under  the  Federal  confiscation  acts  occurs  also  in  Dunning, 
Essays  on  the  Civil  War  and  Reconstruction,  and  Related  Topics, 
31-32. 

'11   Wall.  268. 

*  The  court  thus  treated  the  condemnation  of  "enemies' "  property  as 
a  matter  quite  different  from  the  infliction  of  a  criminal  penalty  of 
confiscation  upon  "rebels."  It  is  difficult  to  discover  the  "intention  of 
the  legislators"  on  this  point.  Those  who  passed  the  act  did  not  all 
intend  the  same  thing,  and  some  were  not  even  aware  of  the  dis- 
tinction. 


296  THE  CONSTITUTION  UNDER  LINCOLN 

stood  by  the  court  as  removing  the  legislation  from  the 
category  of  regular  belligerent  measures.  The  conflict 
was  held  to  be  as  truly  a  public  war  as  if  waged  between 
two  independent  nations,  and  those  engaged  in  it  were 
therefore  public  enemies. 

Were  we  concerned  merely  with  finding  the  authorita- 
tive American  doctrine  regarding  the  belligerent  right  of 
confiscation,  we  would  need  to  go  no  further  than  the 
Miller  decision ;  since  it  stands  as  the  pronouncement  of 
the  highest  tribunal  in  the  country.  We  should  not  over- 
look the  fact,  however,  that  the  decision  rested  upon  a 
presumption  which  has  caused  much  controversy  and 
honest  difference  of  opinion.  The  question  was  a  fair 
one  whether  the  right  of  confiscation  could  be  clearly 
supported  on  the  basis  of  the  law  of  nations,  and  this 
was  a  point  of  larger  importance  and  greater  difl&culty 
than  would  be  indicated  by  the  off-hand  assertion  of  the 
court  that  Congress  was  exercising  "an  undoubted  bel- 
ligerent right."  Our  courts  have  regularly  accepted  in- 
ternational law  as  a  "part  of  our  law";  ^  and  while  a  law 
of  Congress  would  hardly  be  ruled  out  on  the  ground 
that  it  violated  international  law,  care  is  usually  taken 
to  consider  as  carefully  as  possible  the  rules  of  interna- 
tional law  whenever  they  bear  upon  a  given  case,  and 
even  to  interpret  laws  in  the  light  of  these  rules.®  It 
will  therefore  aid  our  historical  appreciation  of  the 
confiscation  policy  if  we  view  it  side  by  side  with  the 
legal  principles  which  had  been  developing  in  Conti- 
nental countries  and  in  America  on  the  subject. 

"It  is  the  developed  and  advanced  principles  of  international  law 
that  have  become  a  part  of  our  law.  In  Ware  vs.  Hylton,  3  Dallas 
281,  Justice  Wilson  said:  "When  the  United  States  declared  their  in- 
dependence, they  were  bound  to  receive  the  law  of  nations  in  its  mod- 
em state  of  purity  and  refinement."  See  also  Hilton  vs.  Guyot, 
159  U.  S.  163,  and  The  Paquette  Hahnna,  175  U.  S.  700. 

•Chief  Justice  Marshall  in  The  Charming  Betsy,  2  Cranch  118. 


THE  RIGHT  OF  CONFISCATION  297 


II 

The  chief  Continental  writers  on  international  law 
whose  opinion  would  carry  weight  in  America  were, 
perhaps,  Grotius,  Vattel,  Bynkershoek,  Burlamaqui, 
Rutherford,  and  Pufendorf.  Grotius,  the  pioneer  au- 
thority in  the  field  of  modem  international  law,  could, 
of  course,  be  cited  in  support  of  many  extreme  measures 
of  warfare  which  advanced  usage  has  discarded.  Draw- 
ing his  views  from  a  wide  range  of  ancient  and  medieval 
sources,  he  allows  to  a  belligerent  very  extensive  powers 
over  the  persons  and  property  of  the  enemy.  In  that 
section  of  his  De  Jure  Belli  which  deals  with  the  treat- 
ment of  enemy  property  on  land,  Grotius  dwells  chiefly 
upon  rights  of  conquest,  distribution  of  spoils  and  booty, 
and  the  relative  share  of  individuals  and  governments  in 
goods  obtained  by  military  seizure.  In  his  closest  ap- 
proach to  the  subject  of  confiscation  as  understood  in 
the  Civil  War,  he  remarks,  without  any  indication  of 
approval,  that  "enemy  goods  found  among  us  at  the 
outbreak  of  war"  become  usually  the  property  of  the 
persons  in  possession,  not  of  the  State,  thus  taking  for 
granted  the  right  of  appropriation.  He  then  refers  with- 
out comment  to  a  startling  passage  in  the  old  Roman 
jurist  Tryphonius,  declaring  that  persons  found  in  a  for- 
eign country  become,  on  the  sudden  outbreak  of  war,  the 
slaves  of  those  among  whom  they  are  found.  Referring 
to  the  existing  variety  of  regulations  in  different  nations, 
he  points  out  that  in  some  countries  it  may  "be  intro- 
duced as  a  rule  of  law  for  the  whole  of  an  enemy's  goods 
found  there  to  be  confiscated."  We  may  quote  Grotius, 
then,  as  authority  for  the  belligerent  right  of  confisca- 
tion, but  in  so  doing  we  must  remember  that  the  tone 


298  THE  CONSTITUTION  UNDER  LINCOLN 

of  his  work  is  often  that  of  reluctant  statement  of  unre- 
generate  practice.'^ 

Vattel  threw  the  force  of  his  great  influence  upon  the 
side  of  the  milder  practice  and  insisted  that,  as  a  matter 
of  public  faith,  it  was  the  duty  of  a  sovereign  declaring 
war  to  protect  both  the  persons  and  property  of  enemy 
subjects  within  his  dominions.    He  wrote: 

War  now  being  carried  on  with  so  much  moderation  and 
indulgence,  safeguards  are  allowed  to  houses  and  lands  pos- 
sessed by  foreigners  in  an  enemy's  country.  For  the  same 
reason  he  who  declares  war  does  not  confiscate  the  immovable 
goods  possessed  in  his  country  by  his  enemy's  subjects.  In 
permitting  them  to  purchase  and  possess  those  goods  he  has 
in  this  respect  admitted  them  into  the  number  of  his  subjects. 
But  the  income  may  be  sequestered,  for  hindering  the  re- 
mittance of  it  to  the  enemy's  country.® 

Bynkershoek  stated  in  its  bald  severity  the  extreme 
view  of  the  rights  of  a  belligerent  over  the  enemy.  He 
said:  "Since  it  is  a  condition  of  war  that  enemies,  by 
every  right,  may  be  plundered  and  seized  upon,  it  is 
reasonable  that  whatever  effects  of  the  enemy  are  found 
with  us  who  are  his  enemy,  should  change  their  master 
and  be  confiscated,  or  go  into  the  treasury."  * 

Burlamaqui  treated  of  military  and  naval  captures  and 
did  not  make  clear  his  position  as  to  confiscation  proper. 
In  his  view  large  powers  over  the  goods  of  an  enemy 
were  conferred  by  the  laws  of  war.  His  mixture  of 
legal  rules  with  "natural  right"  phOosophy,  and  his  loose 
statement    of    principles,    render    him    valueless    as    a 


'  Grotius,  De  Jure  Belli  ac  Pads,  Lib.  Ill,  Cap.  vi,  sec.  xiii. 
•Vattel,  Law  of  Nations   (Luke  White  ed.,  Dublin,   1792),  Bk.  Ill, 
6ec.  76. 
'Bynkershoek,  Quaestiones  Juris  Puhlici  (1737),  Lib.  I,  Cap.  7,  p.  175. 


THE  RIGHT  OF  CONFISCATION  299 

serious  authority,  but  he  was  nevertheless  quoted  in 
support  of  the  right  of  confiscation.^" 

In  Rutherford  we  find  no  direct  treatment  of  the  sub- 
ject. He  discussed  the  taking  of  property  as  an  equiva- 
lent for  damages  and  expenses,  or  to  bring  the  other 
nation  "to  do  what  is  right,"  and  such  a  seizure  in  hi;^ 
view  imphed  an  obligation  to  return  the  goods  when 
satisfaction  had  been  given  for  the  injury  done.  His 
general  attitude  resembles  that  of  Burlamaqui.^^ 

Pufendorf  confined  his  remarks  on  the  treatment  of 
private  property  in  war  to  the  subject  of  captures,  on 
which  his  opinions  were  humane  and  conservative,  de- 
rived as  they  were  from  the  natural  right  philosophers, 
from  Grotius,  and  from  modem  history.  What  he  said 
on  the  subject  of  booty,  captures,  and  the  levy  of  con- 
tributions upon  inhabitants  of  territory  in  hostile  occu- 
pation should  not  have  been  cited  as  applying  to  the 
question  of  general  confiscation  at  all;  but  he  was  never- 
theless so  quoted,  as  for  instance  by  Justice  Story,  dis- 
senting, in  Brown  vs.  United  States}^ 

A  study  of  these  earher  writers  fails  to  reveal  any 
noticeable  preponderance  of  legal  opinion  on  the  side  of 
confiscation  as  a  belligerent  right.  Vattel  and  Pufendorf 
favored  tlie  more  humane  practice;  Burlamaqui  and 
Rutherford  did  not  deal  with  confiscation  in  the  broader 
sense;  Grotius  stated  the  extreme  right  of  the  belligerent 
over  the  enemy's  property  without  indicating  approval; 
and  Bynkershoek  was  almost  alone  in  referring  to  con- 
fiscation  as  a  "reasonable"   practice.     To   derive  from 

"Burlamaqui,  Principles  of  Natural  and  Political  Science  (Nugent 
trans.,  Boston,  1792),  375  et  seq.;  Cited  by  Story  (dissenting)  in  Brown 
vs.  U.  S.,  8  Cranch  143,  and  by  Chase  in  Ware  vs.  Hylton,  3  Dallas  226. 

"3  Rutherford,  Institutes  of  Natural  Law  (2nd.  Amer.  ed.,  1832), 
Ch.  ix,  passim. 

"Pufendorf,  Droit  de  la  Nature  et  des  Gens,  Lib.  VIII,  Ch.  v,  sec. 
xvii  et  seq.;  Story's  dissenting  opinion  in  Brown  vs.  U.  S.,  8  Cranch  143. 


300  THE  CONSTITUTION  UNDER  LINCOLN 

these  writers  any  substantial  authority  for  the  form  of 
confiscation  adopted  during  the  Civil  War  requires,  to 
say  the  least,  a  rather  sympathetic  editing. 


in 

Turning  now  to  the  views  of  American  jurists,  we  find 
a  convenient  starting  point  in  the  case  of  Ware  vs. 
Hylton,  argued  before  the  Supreme  Court  in  1796.^^ 
The  matter  at  issue  was  the  right  of  Virginia,  on  the 
authority  of  a  State  law  of  sequestration  passed  during 
the  Revolution,  to  seize  debts  due  to  British  subjects  and 
prevent  their  recovery  after  the  war.  The  case  is  of 
interest  because  it  called  forth  expressions  by  prominent 
American  lawyers  concerning  the  belligerent  right  of  con- 
fiscation. John  Marshall,  arguing  for  Virginia's  claim, 
regarded  it  as  unquestioned  "that  independent  nations 
have  in  general  the  right  of  confiscation."  ^^  In  the  same 
case  Justice  Chase  declared  that  every  nation  at  war 
with  another  is  authorized  "by  the  general  and  strict  law 
of  nations,  to  seize  and  confiscate  all  movable  property 
of  its  enemy  (of  any  kind  or  nature  whatsoever)  wherever 
found,  whether  within  its  territory  or  not."  ^^ 

But  perhaps  the  most  important  early  American  de- 
cision on  confiscation  was  that  in  Brown  vs.  United 
States,^^  rendered  by  Chief  Justice  INIarshall  in  1814, 
and  taken  by  many  as  the  most  authoritative  interpreta- 
tion of  the  American  law  on  the  subject  down  to  the 
time  of  the  Civil  War.  A  British  cargo  had  been  seized 
at  the  outbreak  of  the  war  of  1812,  and  IMarshall  treated 
the  controversy  as  one  relating  to  the  general  class  of 
"British  property  found  on  land  at  the  commencement 

"3  Dallas  199.  "Ibid.,  p.  226. 

i*Ibid.,  p.  210.  ^S  Cranch  110. 


THE  RIGHT  OF  CONFISCATION  301 

of  hostilities."  Basing  his  rather  sweepmg  conclusion 
upon  the  ex  parte  citation  of  authorities  submitted  by 
the  counsel  for  the  appellant,  Marshall  wrote:  "It  may 
be  considered  as  the  opinion  of  all  who  have  written  on 
the  jus  belli  that  war  gives  the  right  to  confiscate  but 
does  not  itself  confiscate  the  property  of  the  enemy." 
A  special  act,  so  the  court  held,  was  necessary  to  author- 
ize seizures;  and,  since  no  such  act  had  been  passed 
relating  to  the  War  of  1812,  the  property  was  released. 
This  release  of  the  property,  it  should  be  noted,  takes 
from  the  case  such  force  as  it  might  have  had  if  a  spe- 
cific act  of  confiscation  had  been  sustained.  Justice 
Story  went  further  than  Marshall  and  maintained  in 
his  dissenting  opinion  that  the  right  of  confiscation 
vested  at  once  in  the  executive  without  express  statu- 
tory provision.  Both  Marshall  and  Story  were  positive 
as  to  the  abstract  right;  but  when  one  traces  the  authori- 
ties which  these  men  quoted,  he  is  likely  to  find  treat- 
ments of  capture,  or  booty,  or  the  levy  of  contributions 
— topics  quite  distinct  from  confiscation. 

Certain  recognized  treatise  writers  touched  upon  the 
subject  of  confiscation.  Chancellor  Kent,  whose  Com- 
mentaries on  American  Law  first  appeared  in  1826,  based 
his  treatment  of  the  question  upon  the  Brown  decision 
which  he  considered  as  definitely  settling  the  point  for 
the  United  States  "in  favor  of  the  sterner  rule,"  but 
qualified  his  statement  by  referring  to  modern  authority 
and  practice  which  was  contrary  to  the  "right."  ^'^ 

Wheaton,  on  the  other  hand,  directing  his  attention 
to  the  practice  of  modem  nations  rather  than  to  strict 
legal  rules,  reached  the  opinion  that  "property  of  the 
enemy  found  within  the  territory  of  the  belligerent  State, 
or  debts  due  to  his  subjects  by  the  government  or  indi- 


"  James  Kent,  Commentaries  on  American  Law  (11th  ed.),  I,  66-67. 


302   THE  CONSTITUTION  UNDER  LINCOLN 

viduals  at  the  commencement  of  hostilities,  are  not  hable 
to  be  seized  and  confiscated  as  prizes  of  war."  He  added, 
however,  that  the  rule  is  "not  inflexible";  that  it  de- 
pends largely  upon  treaty  stipulations;  and  that  "like 
other  precepts  of  morahty,  of  humanity,  and  even  of  wis- 
dom, it  is  addressed  to  the  judgment  of  the  sovereign — 
it  is  a  guide  which  he  follows  or  abandons  at  his  will; 
and  although  it  cannot  be  disregarded  by  him  without 
obloquy,  yet  it  may  be  disregarded."  ^^ 

Taking  Wheaton's  interpretation,  then,  the  Federal 
Congress,  in  adopting  the  confiscation  policy  at  the  time 
of  the  Civil  War,  was  setting  aside  a  "not  inflexible" 
rule  of  humane  usage  as  a  retaliatory  measure  against 
the  Confederate  Government  which  had  sequestered 
Northern  debts  and  property;  while,  according  to  the 
views  of  Marshall,  Story,  and  Kent,  it  was  acting  in 
harmony  with  its  strict  legal  rights  as  a  belligerent 
power.^^ 

"  Henry  Wheaton,  Elements  of  International  Law  (Lawrence's  6th 
ed,  Boston,  1855),  Part  iv,  Ch.  i,  p.  369. 

2' It  may  not  be  amiss  to  observe  the  light  in  which  confiscation  haa 
been  regarded  by  recent  authorities.  F.  H.  Geffcken,  in  his  edition  of 
the  treatise  by  the  BerHn  professor,  Heffter,  strongly  denounces  con- 
fiscation, though  Heffter  himself  supported  the  practice.  Hall  in- 
correctly refers  to  the  Confederate  Act  of  Sequestration  of  August, 
1861,  as  the  only  instance  of  confiscation  since  Napoleon,  thus  ignoring 
the  Federal  confiscation  acts.  He  characterizes  confiscation  as  a  "dying 
right"  which  he  hopes  "will  never  again  be  put  in  force."  Lawrence 
follows  Hall,  repeating  his  error  as  to  the  Confederacy  furnishing  the 
only  instance  of  confiscation  since  Napoleon,  and  denounces  the  prac- 
tice with  even  more  emphasis.  He  says:  "We  may  join  the  great 
majority  of  Continental  publicists  in  the  assertion  that  the  International 
Law  of  our  own  time  does  not  permit  the  confiscation  of  the  private 
property  of  enemy  subjects  found  on  the  land  territon,-  of  the  State 
at  the  outbreak  of  war."  Woolsey  states  the  American  rule  that  enemy 
private  property  is  confiscable  by  strict  legal  right,  but  expresses  the 
hope  that  the  national  legislature  will  "never  consent  to  disgrace  the 
country  by  an  act  of  that  kind."  During  the  World  War  the  prop- 
erty of  persons  residing  in  Germany  and  of  interned  aliens  in  this 
country  was  taken  over  by  the  Alien  Property  Custodian  of  the  United 
States  under  the  authority  of  the  Trading  with  the  Enemy  Act.    This 


THE  RIGHT  OF  CONFISCATION  303 


IV 

There  is  a  particular  phase  of  confiscation  which  is 
quite  distinct  in  principle  from  other  kinds  of  forfeiture 
— namely,  the  confiscation  of  debts.  Both  the  Confed- 
erate sequestration  law,  and  the  Federal  Confiscation 
Act  of  1862  applied  to  debts,  the  difference  between  the 
two  measures  being  partly  a  matter  of  enforcement,  and 
partly  one  of  emphasis  in  the  statutes  themselves.  The 
language  of  the  Confederate  statute  and  the  machinery 
devised  for  its  enforcement  indicated  an  intention  to 
apply  the  law  chiefly  to  intangible  forms  of  property, 
and  debts  due  from  citizens  in  the  South  to  Northern 
creditors  formed  a  large  portion  of  the  property  contem- 
plated for  seizure.  In  the  Federal  law,  however,  the 
seizure  of  debts,  though  authorized  by  the  broad  word- 
ing of  the  statute,  was  but  incidental.  Southern  planters 
were  financially  dependent  upon  Northern  brokers  and 
bankers,  through  whom  they  made  purchases  and  real- 
ized in  advance  upon  the  income  from  their  crops  mar- 
keted abroad.  The  balance  of  indebtedness  was  conse- 
quently unfavorable  to  the  South.  According  to  Schwab, 
the  most  careful  estimate  of  the  outstanding  indebted- 

has  been  treated  as  temporary  custody  rather  than  as  confiscation. 
The  joint  resolution  of  July,  1921,  declaring  peace  with  Germany,  pro- 
vided that  all  such  property  should  be  retained  by  the  United  States 
until  satisfactory  action  should  be  taken  by  the  German  government 
concerning  American  claims,  and  the  latest  report  of  the  Custodian 
shows  that  the  major  portion  of  this  property  has  been  returned.  In 
commenting  on  this  subject,  J.  W.  Gamer  writes  with  disapproval  of 
the  practice  of  confiscation.  (Heffter,  Le  Droit  International  de  I' 
Europe  [Geffcken  ed.,  trans,  by  Bergson],  310,  editor's  note;  W.  E. 
Hall,  International  Laiv  [7th  ed.,  Oxford,  1917],  pp.  462-464;  T.  J. 
Lawrence,  Principles  of  International  Law  [7th  ed.],  pp.  402-404;  Theo- 
dore D.  Woolsey,  Introduction  to  the  Study  of  International  Law  [5th 
ed.,  N.  Y.,  1879],  p.  203;  Arthur  G.  Hays,  Enemy  Property  in  America 
[Albany,  1923],  pp.  52,  54,  68,  174;  J.  W.  Gamer,  International  Law 
and  the  World  War,  I,  104-105.) 


304  THE  CONSTITUTION  UNDER  LINCOLN 

ness  of  the  South  to  the  North  in  1861  placed  the 
amount  at  forty  million  dollars.  Though  the  amount 
actually  sequestered  did  not  exceed  §380,000  in  gold,  yet 
the  potential  effects  of  the  law  were  very  great.-*'  It  is 
not  suggested,  of  course,  that  one  section  was  any  more 
blameworthy  than  the  other  in  the  adoption  of  this 
policy,  for  both  sides  were  using  the  same  weapon. 

Confiscation  of  debts  is  even  harder  to  defend  as  a 
belligerent  right  than  the  seizure  of  tangible  property. 
Even  so  early  a  writer  as  Vattel  pointed  out  that  "in 
regard  to  the  advantage  and  safety  of  commerce,  all  the 
sovereigns  of  Europe  have  departed  from  this  rigor." 
Seizure  of  debts  would,  according  to  Vattel,  be  so  inju- 
rious to  public  faith  as  to  affect  very  seriously  the  free- 
dom and  security  of  international  business  relations.-^ 

In  Brown  vs.  United  States,  Story  thus  stated  what 
he  regarded  as  the  principle  prevailing  in  1814:  "On  a 
review  of  the  authorities  I  am  entirely  satisfied  that, 
by  the  rigor  of  the  law  of  nations  and  of  the  common 
law,  the  sovereign  of  a  nation  may  lawfully  confiscate 
the  debts  of  his  enemy,  during  war  or  by  way  of  reprisal; 
and  ...  I  think  this  opinion  fully  confirmed  by  the 
judgment  of  the  Supreme  Court  in  TT'^arc  vs.  Hylton, 
.  .  .  where  the  doctrine  was  explicitly  asserted  by  some 
of  the  judges,  reluctantly  admitted  by  others,  and  denied 
by  none."  --  Story's  interpretation  of  the  opinions  in 
Ware  vs.  Hylton  overlooks  the  fact  that  Justices  Pat- 
terson and  Wilson  argued  against  the  reputableness  of 
the  practice,  while  Cushing  did  not  touch  the  question. 

*"J.  C.  Schwab,  The  Confederate  Statca  of  America,  III,  120.  On  the 
South'a  financial  indcbtetlness  to  the  North  one  shouUl  consult  also, 
but  with  caution,  T.  P.  Kettel,  Southern  Wealth  and  Northern  Profits 
(N.  Y,  1861),  and  DeBow's  Review,  XX,  744;  XXI,  308;  XXII,  623; 
XXIII,  225. 

"Vattel,  op.  cit.,  Ill,  5,  77. 

"8  Cranch  142. 


THE  RIGHT  OF  CONFISCATION  305 

Only  Chase  and  Iredell  gave  their  full  support  to  the 
right.  The  following  was  Judge  Patterson's  comment: 
"The  truth  is  that  the  confiscation  of  debts  is  at  once 
unjust  and  impolitic;  it  destroys  confidence,  violates 
good  faith,  and  injures  the  interests  of  commerce;  it  is 
...  in  most  cases  impracticable."  ^^  The  odium  attach- 
ing to  the  seizure  of  debts  was  well  stated  in  1814  by 
Davis,  arguing  for  the  appellant  in  Brovm  vs.  United 
States:  "It  seems  to  be  now  perfectly  settled  by  the 
modem  law  and  practice  of  nations  that  debts  are  never 
to  be  confiscated;  that  it  has  become  a  disgraceful  act 
in  any  government  that  does  it;  that  these  debts  are 
suspended,  and  the  right  to  recover  them  necessarily 
taken  away  by  the  war;  but  that  upon  the  return  of 
peace,  the  debts  are  revived,  and  the  right  to  recover 
them  perfectly  restored."  -* 

Even  as  far  back  as  Magna  Carta,  debts  and  property 
of  foreign  merchants  in  England  were  protected  at  the 
outbreak  of  war  in  return  for  reciprocal  guarantees  from 
other  countries,-^  while  the  commercial  ascendancy  of 
England  in  modern  times  has  inclined  her  toward  the 
policy  of  leaving  enemies'  debts  untouched.  The  disas- 
trous consequences  of  the  failure  of  an  attempted  seques- 
tration of  debts,  such  as  that  undertaken  by  Napoleon 
against  England,  might  have  served  as  a  signal  for  cau- 
tion; for  in  the  settlement  concluded  at  Paris  in  May, 
1814,  indemnity  was  exacted  for  the  French  confiscation 
of  English  debts.-®    Even  in  the  case  of  the  confiscations 


"3  Dallas  254. 

•*8  Cranch  118. 

^  Magna  Carta,  Cap.  41.  G.  B.  Adams  and  H.  Morse  Stephens, 
Select  Documents  of  English  Constitutional  History,  47.  For  a  com- 
mentary on  this  subject,  see  Kent,  Commentaries   (11th  ed.),  I,  66. 

"For  the  satisfaction  of  these  debts  France  assumed  an  annuity  of 
3,000,000  francs,  representing  a  capital  of  60,000,000  francs.  (Additional 
Articles  between  France  and  Great  Britain  to  the   Treaty   of  Paris, 


306  THE  CONSTITUTION  UNDER  LINCOLN 

b}^  the  American  States  during  the  Revolution,  and  in 
spite  of  American  success,  the  final  adjustment  of  the 
matter  involved  the  pajTuent  by  the  United  States  Gov- 
ernment of  a  round  sum  for  the  satisfaction  of  British 
creditors.  In  1796  the  Supreme  Court  of  the  United 
States  decreed  that  a  British  debt  confiscated  by  Vir- 
ginia during  the  Revolution  should  be  recovered  in 
British  sterling  with  interest  computed  from  July  7, 
1782,  the  date  of  the  preliminary  treaty  between  Great 
Britain  and  the  United  States.-^  Jay's  treaty  had  previ- 
ously provided  for  the  final  adjustment  of  these  debts 
by  a  commission;  and  after  a  temporary  suspension 
of  the  commission  a  settlement  of  the  matter  was 
finally  made  in  January,  1802,  requiring  the  payment  of 
$2,664,000  by  the  United  States  Govemment.^s 

Perhaps  the  best  indication  of  the  practical  necessity 
of  exempting  debts  from  seizure  is  to  be  found  in  the 
well-established  practice  among  modern  nations  of  ex- 
changing treaty  guarantees  that  in  event  of  war  debts 
will  not  be  sequestered.  In  Jay's  treaty  of  1794  the 
clause  providing  for  such  exemption  was  more  than  a 
stipulation;  it  was  a  declaration  of  principle.  After  pro- 
viding against  the  sequestration  of  private  debts,  the 
treaty  proceeded  as  follows:  ''it  being  unjust  and  im- 
politic that  debts  and  engagements,  contracted  and 
made  by  individuals  having  confidence  in  each  other  and 
in  their  respective  governments,  should  ever  be  destroyed 
or  impaired  by  national  authority  on  account  of  national 
difi"erences  and  discontents."  ^^ 

May  30,  1814,  Art.  4;  Convention  between  Great  Britain  and  France, 
April  25,  1818.  For  these  treaties,  see  Hertslet,  Map  of  Europe  by 
Treaty,  I,  21-22,  551.) 

"  Ware  vs.  Hylton,  3  Dallas  199. 

"John  Bassctt  Moore,  Ilulory  and  Digest  of  International  Arbitra- 
tions, I,  298;  U.  S.  Stat,  at  Large,  II,  192. 

"Article  X  of  the  Jay  Treaty:     V.  S.  Stat,  at  Large,  VIII,  122. 


THE  RIGHT  OF  CONFISCATION  307 


One  of  the  graver  questions  which  arose  in  the  execu- 
tion of  the  confiscation  poUcy  was  as  to  the  "standing  in 
court"  that  should  be  conceded  to  the  owner  of  confis- 
cable property.  Since  confiscation  grew  out  of  the  crime 
of  rebellion,  as  defined  in  the  act  of  1862,  it  would  appear 
that  at  least  a  quasi-criminal  character  pertained  to  con- 
fiscation proceedings.  Recognition  of  this  quasi-criminal 
character  would  require  that  the  suspected  rebel  should 
be  brought  into  court  and  given  a  hearing,  and  that  the 
guarantees  of  the  Fifth  and  Sixth  Amendments  of  the 
Constitution  should  be  extended  to  him.  This  was  more 
than  a  matter  of  form,  for  to  exclude  the  principles  of 
criminal  procedure  and  to  treat  the  cases  purely  as 
actions  against  property,  would  entail  a  denial  of  funda- 
mental rights. 

The  Supreme  Court  refused  in  general  to  treat  con- 
fiscation as  a  criminal  proceeding.  A  rather  serious 
irregularity  in  the  wording  of  the  Ubel  in  a  Louisiana 
case — an  irregularity  which  would  have  ruled  out  an  in- 
dictment in  a  criminal  action — was  not  held  by  the  court 
to  be  a  substantial  defect.  In  stating  the  opinion  of  the 
court,  Justice  Strong  declared  that  the  proceedings  were 
"in  no  sense  criminal  proceedings,"  and  were  "not  gov- 
erned by  the  rules  that  prevail  in  respect  to  indictments 
or  criminal  informations."  ^^  The  only  subject  of  in- 
quiry, in  the  opinion  of  the  court,  was  the  liability  of 
the  property  to  confiscation;  and  persons  were  referred 
to  only  to  identify  the  property.^^ 

"The  Confiscation  Cases,  87  U.  S.  104-105.  Three  of  the  justices  dis- 
sented to  this  opinion. 

"Justice  Field,  dissenting  in  Tyler  vs.  Defrees  (78  U.  S.  331),  con- 
tended that  confiscation  was  essentially  a  criminal  proceeding.  Presi- 
dent Lincoln  also  held  this  view.    Supra,  p.  280. 


308  THE  CONSTITUTION  UNDER  LINCOLN 

This  problem  of  the  true  character  of  confiscation  pro- 
ceedings was,  in  one  of  its  aspects,  merely  a  phase  of  the 
larger  question  of  rebel  status  as  distinguished  from  bel- 
ligerent status,  and  went  to  the  very  root  of  the  legal 
nature  of  the  Civil  War.  As  we  have  noted  in  a  previ- 
ous chapter,  the  flexible  rule  of  double  status,  including 
both  that  of  a  "rebel"  and  of  a  public  belligerent,  was 
adopted,  and  was  announced  by  the  Supreme  Court  in 
the  Prize  Cases  as  well  as  in  other  decisions.  The  Con- 
fiscation (or  Treason)  Act  of  1862  was,  in  accordance 
with  this  rule,  interpreted  as  an  exercise  of  both  sovereign 
and  belligerent  rights. 

In  Aliller  vs.  United  States  the  Supreme  Court  drew  a 
careful  distinction  between  the  first  four  sections  of  the 
act  "which  look  to  the  punishment  of  individual  crime, 
and  which  were  therefore  enacted  in  virtue  of  the  sover- 
eign power,"  and  the  subsequent  sections  (including  con- 
fiscation) "which  have  in  view  a  public  war,  and  which 
direct  the  seizure  of  property  of  those  who  were  in  fact 
enemies,  for  the  support  of  the  armies  of  the  country."  '^ 

It  will  be  readily  seen  that  the  question  of  rebel 
status,  and  the  related  question  as  to  whether  confisca- 
tion should  be  enforced  as  a  criminal  proceeding,  had  a 
real  practical  importance.  One  of  the  common  difficul- 
ties in  the  enforcement  of  the  confiscation  acts  was  to 
decide  whether,  in  seizing  the  property  of  persons  ad- 
hering to  the  "rebellion,"  opportunity  should  be  given 
for  the  supposed  "rebel"  to  appear  in  court  and  plead 
his  cause.  On  the  one  hand  stood  the  principle  that  an 
enemy  has  no  standing  in  court;  while  on  the  other 
hand,  by  the  very  nature  of  the  proceeding,  judgment 
must  rest  upon  a  determination  of  the  fact  as  to  whether 
or  not  the  party  was  actually  engaged  in  the  rebellion,  a 

"78  U.  S.  308. 


THE  RIGHT  OF  CONFISCATION  309 

point  on  which  the  owner  could  claim  a  right  to  be 
heard. 

The  practice  during  the  war  on  this  matter  was  un- 
certain and  frequently  detrimental  to  the  owner's  inter- 
est. In  the  district  court  for  the  eastern  district  of  Vir- 
ginia a  general  rule  was  prescribed  which  disallowed  a 
hearing  in  the  case  of  persons  supporting  the  rebellion.^' 
In  a  case  tried  before  Judge  Betts  of  the  southern  dis- 
trict of  New  York  in  November,  1863,^^  the  defendant, 
a  resident  of  Alabama,  duly  filed  an  answer  to  the  alle- 
gations set  forth  in  the  libel  against  his  property;  but 
the  judge  ordered  this  answer  to  be  stricken  from  the 
files  on  the  ground  that  the  defendant  was  an  alien 
enemy,  and  hence  had  no  persona  standi  in  a  court  of 
the  United  States.^^  The  only  point  which  Judge  Betts 
regarded  as  at  all  relevant  was  that  the  claimant,  Leroy 
M.  Wiley,  resided  in  Eufaula,  in  the  State  of  Alabama. 
"The  court,"  he  declared,  "must  take  judicial  notice  that 
Alabama  is  an  insurrectionary  State,  having  been  at  the 
commencement  of  this  suit,  and  yet  continuing,  in  a  con- 
dition of  rebellion  and  actual  hostility  against  the  United 
States.  That  condition  constitutes  all  the  inhabitants 
of  that  State  alien  enemies  of  this  country."  On  this 
ground  alone  Wiley  was  excluded  from  court  and  his 
property  condemned.  Circuit  Justice  Nelson  of  New 
York,  in  reviewing  the  action  of  Judge  Betts,  declared 
that,  even  though  the  claimant's  status  as  an  alien 
enemy  might  be  admitted,  he  should  have  been  allowed 
to  plead  and  contest  the  charges  made  in  the  libel,  since 
a  similar  privilege  had  been  extended  to  owners  in  prize 
cases. 

In  criticizing  Judge  Betts'  position  a  contemporary 

"Semple  vs.  U.  S.,  21  Fed.  Cas.  1072. 

^'Ann.  Cyc,  1863,  p.  220. 

"Jecker  vs.  Montgomery,  18  How,  112,  and  cases  therein  cited. 


310  THE  CONSTITUTION  UNDER  LINCOLN 

writer  pointed  out  that,  if  Betts'  doctrine  was  correct, 
"the  mere  fact  of  Mr.  Wiley's  residence  in  a  Southern 
insurrectionary  State  precludes  him  from  appearing  and 
contesting  the  allegations  of  the  libel  that  he  has  ren- 
dered active  aid  to  the  rebellion.  .  .  .  Under  such  a 
practice  every  dollar  of  property  owned  by  Southern 
citizens  in  the  North,  no  matter  how  loyal,  need  only 
be  seized  under  an  allegation  of  disloyal  practices;  and 
as  the  accused  cannot  be  heard  to  deny  that  allegation 
(and  if  he  remains  silent  no  proof  of  it  is  required),  the 
whole  matter  is  ver}'  summarily  disposed  of."  ^* 

This  question  whether  a  "rebel"  should  have  a  hear- 
ing in  a  Federal  court  on  the  issue  of  the  condemnation 
of  his  property,  waited  until  after  the  war  for  its  settle- 
ment by  the  Supreme  Court.  The  case  was  that  of 
McVeigh  vs.  United  States,  a  prominent  confiscation 
case  which  resembled  that  in  which  Judge  Betts  had 
given  his  radical  decision.  A  libel  of  information  had 
been  filed  in  the  eastern  Virginia  district  to  reach  cer- 
tain real  and  personal  property  of  ^McVeigh,  who  was 
charged  with  having  engaged  in  armed  rebellion. 
McVeigh  appeared  by  counsel,  interposed  a  claim  to 
the  property,  and  filed  an  answer  to  the  information. 
By  motion  of  the  district  attorney,  however,  the  appear- 
ance, answer,  and  claim  were  stricken  from  the  files  for 
the  reason  that  the  respondent  was  a  "resident  of  the 
city  of  Richmond,  within  the  Confederate  lines,  and  a 
rebel."  The  property  was  condemned  and  ordered  to 
be  sold. 

When  this  case  reached  the  Supreme  Court  the  judg- 
ment was  reversed,  and  the  action  of  the  district  attor- 
ney unanimously   condemned.^'^     The   court   held   that 


'Ann.  Cyc,  1863,  pp.  220-221. 

'78  U.  S.  259  (1S70).    Sec  also  Windsor  vs.  McVeigh,  93  U.  S.  274. 


THE  RIGHT  OF  CONFISCATIOI^  311 

McVeigh's  alleged  criminality  lay  at  the  foundation  of 
the  proceeding,  and  that  the  questions  of  his  guilt  and 
ownership  were  therefore  fundamental  in  the  case.  The 
order  to  strike  the  claim  and  answer  from  the  files  on 
the  ground  that  McVeigh  was  a  "rebel"  amounted  to  a 
prejudgment  of  the  verj^  point  in  question  without  a 
hearing.  The  court  below  in  issuing  this  order  had 
acted  on  the  theory  that  no  enemy  of  the  United  States 
could  have  standing  in  its  courts,  but  the  higher  tribunal 
refused  to  allow  such  an  application  of  this  principle. 
The  Supreme  Court  was  thus  committed  to  the  proposi- 
tion that  a  suspected  "rebel"  should  not  be  denied  the 
right  to  a  hearing  in  connection  with  the  seizure  of  his 
property.  Had  this  conclusion  been  pronounced  early 
enough  to  produce  uniformity  of  practice  in  the  lower 
courts  during  the  war,  the  advantage  of  the  McVeigh 
decision  would  have  been  greater. 

This  allowance  of  a  hearing  to  the  rebel  if  he  should 
appear  did  not,  however,  prevent  adverse  judgment  in 
case  of  default.  In  the  nature  of  the  case,  it  frequently 
happened  that  the  owner  was  absent,  supposedly  partici- 
pating in  the  "rebellion."  Not  only  was  it  an  impossi- 
bility in  most  instances  for  him  to  appear  before  a  dis- 
tant Federal  court  and  defend  his  property;  it  was  fre- 
quently difficult  for  him  even  to  receive  notice  of  the  libel, 
since  the  method  of  notification  was  the  publication  of 
a  monition  in  a  local  newspaper  which  commonl}^  would 
not  reach  the  absent  owner.  The  concession  that  an 
owner  might  "appear"  by  his  agent  was  an  advantage, 
but  it  did  not  by  any  means  satisfy  the  needs  of  all  the 
cases. 

The  statutes  were  not  explicit  as  to  whether  judgments 
should  be  rendered  on  default,  and  it  became  a  nice  ques- 
tion of  interpretation  as  to  whether  such  judgments  were 
valid.    The  fact,  however,  that  proceedings  were  in  rem, 


312  THE  CONSTITUTION  UNDER  LINCOLN 

with  general  conformity  to  admiralty  procedure,  justi- 
fied the  presumption  that  in  case  of  the  owner's  failure 
to  make  appearance,  the  court  should  enter  a  decree  of 
condemnation  without  hearing.  It  was  usually  taken 
for  granted  that  this  was  the  intention  of  the  law. 
Finally,  in  Miller  vs.  United  States,  it  was  laid  down 
that  in  case  of  default  judgment  should  be  entered 
against  the  property.  The  certification  of  the  default 
in  due  form  was  to  be  regarded  as  establishing  all  the 
facts  averred  in  the  information  as  in  the  case  of  con- 
fession or  actual  conviction  upon  evidence.  It  was  not 
even  necessar>^  said  the  court,  to  conduct  an  ex  parte 
hearing  after  the  default.^^ 

VI 

The  question  of  the  constitutionality  of  the  confisca- 
tion acts  is  a  composite  rather  than  a  simple  problem. 
In  preceding  pages  various  legal  controversies  have  been 
considered  as  distinct  issues  pertaining  to  the  applica- 
tion and  interpretation  of  the  confiscation  laws;  but 
from  a  different  point  of  view  some  of  these  questions 
may  be  looked  upon  in  their  relationship  to  the  consti- 
tutionality of  this  legislation.  No  decision  was  had  on 
this  subject  of  constitutionality  during  the  war;  and 
when  finally  in  1871  the  matter  was  made  a  direct  issue 
before  the  Supreme  Court  in  the  INIillcr  case,  much  of 
the  way  had  been  cleared  by  earlier  decisions.  The  pri- 
mary question  of  the  nature  of  the  Civil  War  had  been 
fully  treated  in  the  Prize  Cases,^^  where  the  court  had 
defined  the  conflict  as  one  of  sufficient  magnitude  to 
give  the  United  States  all  the  powers  which  might  be 
exercised  in  the  case  of  a  foreign  war,  while  at  the  same 

"78  U.  S.  301-303.  "Supra,  pp.  52  ct  seq. 


THE  RIGHT  OF  CONFISCATION  313 

time  the  rights  of  the  United  States  as  a  sovereign  over 
the  "insurrectionary"  districts  were  upheld. 

On  the  basis  of  these  previous  decisions  the  court  pro- 
ceeded to  analyze  the  confiscation  acts  and  declare  their 
validity.^"  The  action  was  brought  under  both  confisca- 
tion acts  to  forfeit  certain  shares  of  stock  in  Michigan 
alleged  to  be  the  property  of  Samuel  Miller,  a  Virginia 
"rebel."  The  most  important  problems  before  the  court 
under  the  head  of  constitutionality  were:  first,  to  decide 
under  what  category  to  place  confiscation — i.  e.,  whether 
to  regard  it  as  the  exercise  of  a  war  power,  or  as  a  munici- 
pal regulation;  and  second,  to  deal  with  the  objection 
that  the  acts  involved  a  violation  of  the  Fifth  and  Sixth 
Amendments  which  guarantee  impartial  trial  and  prop- 
erty rights.  As  to  the  first  of  these  problems,  the  court 
laid  down  the  doctrine  that  the  confiscation  acts  were 
passed  not  as  a  municipal  regulation,  but  as  a  war 
measure.  With  a  tone  of  certainty  which,  as  we  have 
seen,  the  authorities  hardly  warranted,  the  court  declared 
that  "this  is  and  always  has  been  an  undoubted  bel- 
ligerent right."  Congress  had,  said  the  court,  "full 
power  to  provide  for  the  seizure  and  confiscation  of  any 
property  which  the  enemy  or  adherents  of  the  enemy 
could  use  for  the  purpose  of  maintaining  the  war  against 
the  government."  ^^  The  act  of  1861,  and  the  fifth,  sixth, 
and  seventh  sections  of  the  act  of  1862,  were  therefore 
construed  as  the  enforcement  of  belligerent  rights  which 
Congress  amply  possessed  during  the  Civil  War.  This 
portion  of  the  court's  decision  was  far  from  convincing; 

*•  Miller  vs.  U.  S.,  78  U.  S.  268. 

**A  Federal  district  judge  in  New  York,  dealing  with  the  question  of 
German  property  in  America  during  the  World  War,  said  in  1923  (in 
an  unreported  decision) :  "...  Congress  has  not  as  yet  committed 
itself  to  a  confiscation  of  enemy  property,  and  the  rules  of  international 
law  have  been  against  it  for  two  centuries."  (Stoehr  vs.  Miller,  U.  S. 
Dist.  Ct.,  so.  dist.,  N.  Y.,  Jan.  22,  1923;  A.  G.  Hays,  op.  cit.,  p.  174.) 


314  THE  CONSTITUTION  UNDER  LINCOLN 

for,  aside  from  the  fact  that  the  belligerent  right  of  con- 
fiscation was  a  matter  of  some  doubt,  it  was  ably  main- 
tained that  the  whole  tone  of  the  second  Confiscation 
Act  marked  it  as  a  measure  to  punish  "rebels,"  that  con- 
fiscation was  the  penalty  for  rebellion,  and  that  the  for- 
feitures were  directed  against  persons  for  their  crimes, 
not  primarily  against  property  as  a  sinew  of  war. 

Having  placed  the  confiscation  acts  within  the  cate- 
gory of  war  measures,  the  court  found  little  diflSculty  in 
dealing  with  the  objection  that  the  acts  constituted  a 
violation  of  the  Fifth  and  Sixth  Amendments.  The  rele- 
vant provisions  in  these  amendments  are  that  no  person 
shall  be  deprived  of  his  property  without  due  process  of 
law,  and  that  in  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  juiy  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed.  The  acts,  as  we  have  above 
noted,  permitted  judgment  by  default  without  a  jury 
trial,  in  a  distant  State,  without  a  personal  hearing,  and 
without  a  determination  of  the  facts  as  to  the  guilt  of 
the  owner.  One  of  the  essential  features  of  the  Miller 
case  was  that  the  defendant,  a  citizen  of  Virginia,  had 
disregarded  the  notice,  and  the  Federal  court  in  Michi- 
gan had  entered  a  decree  by  default.  It  was  admitted 
by  the  Supreme  Court  that  if  the  purpose  of  the  acts  had 
been  to  punish  ofi"enses  against  the  sovereignty  of  the 
United  States — i.  e.,  if  they  had  been  statutes  against 
crimes  under  the  municipal  power  of  Congress — there 
would  have  been  force  in  the  objection  that  Congress 
had  disregarded  its  constitutional  restrictions.  Since, 
however,  the  acts  were  passed  in  exercise  of  the  war 
powers,  they  were  held  to  be  unaffected  by  the  limita- 
tions of  the  Fifth  and  Sixth  Amendments. 

Three  of  the  justices — Field,  Clifford,  and  Davis — dis- 
sented from  this  opinion.    Their  grounds  of  disagreement 


THE  RIGHT  OF  CONFISCATION  315 

were  that  the  forfeitures  in  question  were  punitive  in 
their  nature,  being  based  on  the  municipal,  not  the  war 
power  of  Congress;  that  condemnations  must  depend 
upon  the  personal  guilt  of  the  owner;  and  that  there- 
fore a  judgment  based  on  mere  default  in  such  cases 
would  amount  to  denial  of  "due  process  of  law." 

These  contentions  of  the  dissenting  judges  not  only 
agree  exactly  with  one  of  the  important  points  in  Lin- 
coln's objections,  but  they  harmonize  with  the  position 
of  the  Supreme  Court  itself  when  dealing  with  the  prob- 
lem whether  a  "rebel"  should  have  a  hearing.  We  no- 
ticed in  connection  with  the  McVeigh  case  that  the  court 
insisted  upon  the  necessity  of  allowing  a  hearing  to  the 
owner  in  case  he  appeared  in  court.'*-  The  dissenting 
judges  were  merely  applying  the  same  broad  principle  to 
the  case  of  default,  and  were  mindful  of  the  fact  that  in 
a  criminal  proceeding  judgments  by  default  are  not  per- 
mitted. As  Justice  Field  remarked  in  Tyler  vs.  Defrees, 
"The  authority  to  render  the  decree  is  in  express  terms 
made  conditional  upon  a  particular  fact  being  found.  .  .  . 
As  the  record  .  .  .  shows  that  no  hearing  was  had,  and 
no  finding  was  made,  the  decree  of  forfeiture  .  .  .  ap- 
pears to  me  to  be  an  act  of  judicial  usurpation."  ^^ 

To  the  thoughtful  student  this  view  of  the  minority 
judges  seems  but  a  natural  protest  against  an  extreme 
doctrine.  The  dissenting  position  appears  still  stronger 
when  it  is  remembered  that  the  majority  judges  admit- 
ted the  incompetence  of  Congress  to  allow  judgments 
such  as  the  confiscation  acts  permitted  on  the  basis  of 
municipal  law,  and  that  the  "war  power"  theory  was 
the  convenient  door  of  escape  from  this  constitutional 
difficulty. 

"  McVeigh  vs.  U.  S.,  78  U.  S.  259. 

**  Dissenting  opinion  of  Justice  Field.     Tyler  vs.  Defrees,  78  U.  S. 
354. 


CHAPTER  XIV 

RESTORATION    OF    CAPTURED    AND    CONFISCATED    PROPERTY 

I.  Virtual  confiscation  in  connection  with  the  direct  tax 

II.  Captured  and  abandoned  property 

III.  Executive  policy  concerning  confiscation  after  the  war 

IV.  Effect  of  pardon  upon  the  restoration  of  confiscated 

property 
V.   Restoration  of  captured  and  abandoned  property 

How  far  was  the  process  of  confiscation  undone  by 
restorations  which  followed  the  war?  It  must  be  an- 
swered that  the  restoration  of  property  actually  taken 
under  confiscation  proceedings  was  only  partial.  This 
was  primarily  a  matter  of  judicial  interpretation,  not  of 
executive  clemency;  and  the  courts  chose  to  adopt  a 
rather  technical  and  complicated  reasoning  which  was 
hardly  in  keeping  with  the  broad  policy  of  amnesty  pur- 
sued by  the  executive.  But  before  we  turn  to  a  consid- 
eration of  the  administration's  attitude  toward  the  con- 
fiscation acts  after  the  war,  and  the  judicial  effect  of 
pardon  upon  confiscated  property,  it  is  necessary  to  in- 
clude within  our  study  certain  forms  of  seizure  which 
practically  amounted  to  confiscation,  though  carried  out 
under  legal  forms  quite  different  from  those  of  the  con- 
fiscation acts.  In  the  collection  of  the  direct  tax  in  the 
"insurrectionary"  districts  a  kind  of  forfeiture  was  prac- 
ticed which  departed  so  far  from  the  principles  of  the 
usual  tax  sale  and  involved  such  discriminations  against 
disloyal  owners  that  it  amounted  to  confiscation.  The 
Captured  Property  Act,  under  which  millions  of  dollars' 

316 


RESTORATION  OF  PROPERTY  317 

worth  of  cotton  and  other  property  in  the  South  was 
taken  over  by  treasury  officials  who  followed  in  the  wake 
of  the  Union  armies,  differed  only  in  method,  and  not  at 
all  in  principle,  from  confiscation  proper.  Having  noted 
these  forms  of  virtual  confiscation,  we  will  then  be  in  a 
better  position  to  treat  the  subject  of  restorations  as  a 
whole. 


The  remarkable  seizures  under  the  direct  tax  levy 
were  based  upon  the  act  of  June  7,  1862,  "for  the  collec- 
tion of  direct  taxes  in  insurrectionary  districts  within 
the  United  States."  ^  An  earlier  statute,  providing  for 
a  direct  tax  to  obtain  war  revenue,  had  apportioned 
quotas  among  all  the  States,  including  those  in  insurrec- 
tion.2  It  was  now  enacted  that  in  those  States  or  dis- 
tricts where  the  tax  quotas  could  not  be  peaceably  col- 
lected, special  tax  commissioners  should  be  appointed  by 
the  President;  and  that  as  soon  as  the  military  authority 
of  the  United  States  could  be  established,  these  commis- 
sioners should  make  assessments  "upon  all  the  lands  and 
lots  of  ground"  situated- in  the  insurrectionary  territory. 
This  assessment  was  to  be  based  upon  the  real  estate  val- 
uation in  force  in  1861.  A  penalty  of  fifty  per  cent  of  the 
tax  proper  was  added;  and,  upon  default  of  the  owners 
to  pay  the  tax  and  penalty,  the  land  was  to  be  "forfeited 
to  the  United  States,"  and  the  commissioners  were  to 
conduct  public  "tax  sales,"  selling  to  the  highest  bidder, 
or  bidding  in  the  property  for  the  Government,  The 
tax-sale  certificate  of  the  commissioners  was  to  be  suffi- 


^  U.  S.  Stat,  at   Large,   XII,   422.     For   an   amendment   passed   on 
February  6,  1863,  see  ibid.,  p.  640. 
'Ibid.,  pp.  294  et  seq. 


318  THE  CONSTITUTION  UNDER  LINCOLN 

cient  to  convey  a  title  in  fee  simple  to  the  land,  free 
from  all  encumbrances.' 

Commissioners  were  appointed  in  accordance  with  this 
unusual  statute  for  each  of  the  insurrectionary  States. 
It  was  impossible,  at  first,  for  the  act  to  be  enforced  uni- 
formly throughout  the  South,  for  it  was  only  in  those 
districts  where  the  Union  forces  maintained  a  foothold 
that  these  so-called  tax  sales  could  be  conducted.  Col- 
lections continued  until  1866,  however,  and  the  reports 
on  this  subject  show  a  very  considerable  amount  of 
money  taken  from  the  South  in  the  enforcement  of  the 
various  provisions  touching  this  direct  tax.  Taking  the 
one  State  of  South  Carolina,  we  find  that,  in  addition  to 
S222,000  paid  as  tax,  sales  of  land  brought  in  approxi- 
mately $370,000,  and  lands  were  "bid  in  by  the  commis- 
sioners for  the  United  States"  to  the  value  of  $300,000. 
These  amounts  totaled  $892,000,  although  South  Caro- 
lina's quota  was  only  $363,000.  The  tax  obtained  from 
all  the  "insurrectionary  States"  was  about  $2,300,000 
and  the  forfeitures  amounted  to  approximately  $2,400,- 
000.  The  total  of  the  amounts  apportioned  to  these 
States  was  $5,100,000;  and,  since  a  very  large  allowance 
must  be  made  for  under\'aluation  of  lands  obtained  by 
the  Government,''  it  would  probably  be  more  accurate 


*  Ibid.,  p.  423,  sec.  4.  After  the  war  there  was  considerable  trouble 
because  of  the  action  of  State  courts  in  evicting  purchasers  of  lands 
sold  under  Federal  authority  for  non-payment  of  the  direct  tax.  {Sen. 
Due.  No.  98,  41    Cong,  2  sess.) 

*In  the  case  of  Tennessee,  the  lands  bid  in  for  the  United  States 
were  valued  at  $309,000,  but  this  was  based  upon  the  assessment  of 
1860,  and  subsequent  improvement  brought  the  value  to  a  figure  in 
excess  of  $1,000,000.  (Report  of  internal  revenue  bureau:  Cotrg. 
Globe,  42  Cong,  2  sess,  p.  3387.)  In  McKee  vs.  U.  S.  (164  U.  S.  292) 
the  Supreme  Court  said:  "The  fact  is  well  known  .  .  .  that  .  .  .  the 
amounts  of  such  sales  [for  failure  to  pay  the  direct  tax  in  the  South] 
were  frequently  and  generally  very  much  less  than  the  real  value  of 
the  property  sold."     General  David  Hunter  strongly   disapproved   of 


RESTORATION  OF  PROPERTY  319 

to  say  that  the  States  of  the  South  overpaid  the  tax 
than  to  speak  of  any  deficiency  in  the  supplying  of  their 
"quotas."  5 

The  Union  Government  could  hardly  have  devised  a 
measure  more  odious  to  the  people  of  the  South.  The 
levy  of  a  Federal  tax  directly  upon  particular  plots  of 
ground  in  regions  dominated  by  the  State-rights  doctrine 
was  particularly  distasteful;  and  the  use  of  a  method 
not  adopted  in  the  North  made  the  partiality  of  the 
measure  the  more  apparent.  The  tax  collector  of  the 
enemy's  Government  was  thus  brought  into  immediate 
relations  with  helpless  citizens  of  those  portions  of  the 
South  which  fell  into  Union  possession,  and  this  natur- 
ally awakened  deep  resentment.  Objection  was  made 
that  in  view  of  the  added  penalty  of  fifty  per  cent,  re- 
quired only  in  the  "insurrectionary"  States,  the  tax  was 
not  proportionately  levied,  and  was  therefore  unconsti- 
tutional. In  dealing  with  this  objection  the  Supreme 
Court  held  that  the  penalty  was  no  part  of  the  tax,  but 
was  a  fine  "for  default  of  voluntary  payment  in  due 
time."  The  validity  of  the  tax  under  the  Constitution 
was  therefore  upheld.® 

Seizures  under  this  act  differed  from  ordinary  tax 
sales.    A  valuable  estate  would  be  sold  to  pay  a  trifling 

these  tax  sales  in  the  South.  In  1863  he  wrote  to  Stanton  of  the 
"glaring  impolicy"  of  such  sales;  the  insufficient  publicit}^;  the  lack 
of  general  competition;  the  encouragement  afforded  to  speculators  who 
obtained  lands  for  a  low  price  and  received  high  prices  for  such  land 
as  was  used  by  the  Government;  the  driving  off  of  the  inhabitants; 
and  the  never-ending  litigation  that  would  follow.  (Hunter  to  Stanton, 
February-  11,  1863;  Stanton  Papers,  X,  52253.) 

'A  statistical  report  of  1872  concerning  the  direct  tax  collections  and 
forfeitures  in  the  South  is  to  be  found  in  the  Cong.  Globe,  42  Cong., 
2  sess.,  p.  3387.  President  Cleveland  stated  to  Congress  in  1889  that 
about  $2,300,000  was  credited  to  the  "insurrectionary  States,"  but  ob- 
viously this  did  not  include  the  amounts  of  the  forfeitures.  {Senate 
Journal,  Mar.  2,  1889,  50  Cong.,  2  sess.,  p.  503.) 

•De  Treville  vs.  Small,  98  U.  S.  527  (Oct.,  1878). 


320  THE  CONSTITUTION  UNDER  LINCOLN 

tax  and  the  surplus,  over  and  above  the  amount  of  the 
tax,  instead  of  being  paid  to  the  owner,  as  in  the  usual 
tax  sale,  was  turned  into  the  Federal  treasury.  The 
customary  privilege  of  redemption  which  belongs  to  a 
dispossessed  owner  whose  property  has  gone  to  pay  a 
tax  was  conditioned  upon  the  taking  of  an  oath  to  sup- 
port the  Constitution  of  the  United  States. 

Whatever  this  sort  of  proceeding  might  be  called,  it 
is  clear  that  its  effect  was  confiscation.  In  fact,  since  in 
these  forfeitures  a  title  in  fee  simple  was  acquired,  the 
effect  was  greater  than  in  the  case  of  the  Confiscation 
Act  of  1862  under  which  only  a  life  interest  was  taken. 
In  some  cases  commissioners  required  owners  to  pay  the 
tax  in  person,  which  was  often  an  impossibility.  The 
question  was  significantly  raised  whether  these  extraor- 
dinary discriminations  were  consistent  with  the  Consti- 
tution, and  whether  such  a  form  of  procedure  could  be 
called  "due  process  of  law."  Even  granting  that  the 
Federal  Government's  sovereignty  would  justify  the 
levying  of  a  tax  upon  Southerners  during  the  "rebel- 
lion," it  is  difficult  to  see  how  these  sweeping  forfeitures 
can  be  defended  on  the  basis  of  "tax  sales." 

The  most  notable  instance  of  seizure  under  the  direct 
tax  legislation  was  the  case  of  the  famous  Arlington 
estate  in  Virginia,  belonging  to  General  Robert  E.  Lee. 
A  tax  amounting  to  $92.07  was  levied  upon  this  estate; 
and  in  September,  1863,  the  whole  property  was  sold  for 
its  non-payment.'^  The  tax  commissioners  "bid  in"  part 
of  the  estate  for  the  Federal  Government  at  $26,800. 
(The  "bidding  in"  meant  that   the  United  States  ob- 


'In  case  of  non-payment  of  ihe  tax  the  law  provided  as  follows: 
".  .  .  the  .  .  .  commissioners  shall  be  authorized  ...  to  bid  off  [the 
land]  for  the  United  States  at  a  sum  not  exceeding  two-thirds  of  the 
assessed  value  thereof,  unless  some  person  shall  bid  a  larger  sum." 
(Amendment  of  Feb.  6,  1863:     U.  S.  Stat,  at  Large,  XII,  640.) 


RESTORATION  OF  PROPERTY  321 

tained  title  to  the  property  and  this  valuation  was  placed 
upon  it.)  For  other  portions  of  the  estate  there  were 
various  other  purchasers.  The  grounds  acquired  by  the 
Government  were  made  into  a  national  cemetery  for  the 
graves  of  Union  soldiers. 

After  the  death  of  Mrs.  Robert  E.  Lee,  her  son,  G.  W. 
P.  C.  Lee,  claiming  to  have  valid  title  to  Arlington,  peti- 
tioned Congress  to  vote  compensation  to  him  in  return 
for  which  he  would  yield  all  his  rights  in  the  property 
and  avoid  litigation  for  its  recoveiy.^  He  based  his  claim 
on  the  ground  that  the  sale  of  the  property  by  the  com- 
missioners amounted  to  confiscation,  and  could  not  be 
held  valid.  The  extraordinary  measures  adopted  to  en- 
force the  tax  were,  he  argued,  unconstitutional.  Instead 
of  the  sale  of  only  so  much  of  the  property  as  was  neces- 
sary to  pay  the  tax  with  interest  and  penalties,  the  whole 
estate  was  forfeited  to  the  United  States  and  sold.  In 
this  case  the  amount  of  the  tax  had  actually  been  offered 
by  Mrs.  Lee  through  her  agent;  but  the  commissioners 
had  refused  to  accept  such  payment,  and  the  petitioner 
declared  that  this  refusal  rendered  the  whole  proceeding 
void.  Further,  it  was  argued  that  the  United  States 
could  not  in  justice  secure  more  than  a  life  interest,  and 
that  the  national  legislature  could  not  acquire  jurisdic- 
tion over  this  estate  without  the  consent  of  Virginia. 
This  petition  was  referred  to  the  Committee  on  Judi- 
ciary, and  was  not  heard  of  further.^ 

The  next  phase  of  the  case  was  a  suit  brought  in  the 
United  States  Circuit  Court  in  Alexandria,  Virginia,  and 
later  appealed  to  the  Supreme  Court,  in  which  the  title 
of  the  United  States  under  the  tax-sale  certificate  was 
contested.    The  decision  in  the  case  of  TInif.f>d  States  vs. 


'Sen.  Misc.  Doc.  No.  96,  43  Cong.,  1  sess. 
'Cong.  Record,  43  Cong.,  1  sesa.,  p.  2812. 


322  THE  CONSTITUTION  UNDER  LINCOLN 

Lcc  is  long  and  technical.^"  The  lower  court  had  de- 
clared Lee's  title  valid,  and  this  decision  was  affirmed. 
The  arguments  of  the  court,  however,  did  not  attack  the 
validity  of  this  general  class  of  tax  sales;  it  was  rather 
the  conduct  of  these  particular  commissioners  which  was 
denounced.  In  spite  of  the  principle  that  the  L'nited 
States  cannot  be  sued  without  its  consent,  it  was  held 
that  action  could  properly  be  brought  because  of  the  acts 
of  persons  who  as  agents  of  the  United  States  might 
have  interfered  in  an  unwarranted  way  with  individual 
property  rights.  The  action  of  the  commissioners  in  this 
case,  in  ruling  that  the  owners  must  pay  the  tax  in  per- 
son, was  held  to  be  faulty;  and  where  the  amount  of  the 
tax  had  been  tendered  through  an  agent  and  refused,  it 
was  held  that  no  proceedings  could  be  legally  conducted 
which  assumed  the  owner's  voluntary  default.  Any  tax- 
sale  certificate  secured  under  such  regulations  was  there- 
fore held  to  be  invalid. 

In  view  of  this  decision  an  appropriation  became  nec- 
essary in  order  to  establish  the  title  of  the  United  States 
to  the  Arlington  cemetery.  The  matter  was  finally  set- 
tled by  the  payment  of  $150,000  as  compensation  to  the 
Lee  heirs,  in  return  for  which  a  release  of  all  claims 
against  the  property  was  obtained.^ ^ 

Although  various  attempts  were  made  to  secure  legisla- 
tion adjusting  the  many  inequalities  which  resulted  from 
the  direct  tax  of  the  Civil  War,  nothing  was  done  until 
March  2,  1891,  when  an  act  was  passed  providing  for  a 
reimbursement  of  the  amounts  collected  from  the  States 
under  the  direct  tax  act  of  August  5,  1861.^-  Payments 
in  restoration  of  the  tax  were  to  be  made  to  the  gov- 

"  106  U.  S.  196. 

^  U.  S.  Slat,  at  Large,  XXII,  584;  Cong.  Record,  47  Cong.,  2  sess.,  pp. 
584.  2C80,  3G61. 
"  U.  S.  Stat,  at  Large,  XXVI,  822. 


RESTORATION  OF  PROPERTY  323 

emors;  and  where  collections  had  been  made  by  the 
United  States  from  citizens  or  inhabitants  "either  di- 
rectly or  by  sale  of  property,"  the  sums  paid  to  the 
governors  were  to  be  held  in  trust  for  the  benefit  of  such 
citizens.  Individual  restitution  to  cure  forfeitures  was 
provided  by  special  clauses  concerning  two  parishes  in 
South  Carolina  where  unusual  hardships  had  been  suf- 
fered, and  by  a  general  provision  that  sums  received  into 
the  treasury  "from  the  sale  of  lands  bid  in  for  taxes  in 
any  State  ...  in  excess  of  the  tax  assessed  thereon" 
should  be  paid  to  the  owners  or  heirs.^^  Jurisdiction  was 
given  to  the  Court  of  Claims  over  cases  arising  under 
these  provisions  for  restitution,  and  its  decisions  were 
fairly  liberal;  but  the  Government  admittedly  restored 
less  than  it  took,^'*  and  at  best  such  tardy  restoration 
could  only  partially  undo  the  effect  of  the  original 
forfeitures.^^ 

II 

In  the  Captured  Property  Act  we  find  virtual  confisca- 
tion in  a  still  different  form.  As  the  Federal  armies  ad- 
vanced, it  was  to  be  expected  that  they  would  make 
captures  of  large  amounts  of  private  property,  especially 
cotton,  and  would  leave  in  their  train  estates  and  mis- 

"In  two  parishes  of  South  Carolina  (St.  Luke's  and  St.  Helena),  there 
was  a  general  failure  to  pay  the  tax,  and  a  large  quantity  of  land  was 
bid  in  for  the  Government  and  later  sold  to  the  former  owners  for 
amounts  greatly  in  excess  of  the  sums  at  which  the  property  had  been 
bid  in.  One  lot  bid  in  at  $100  was  resold  to  the  owner  for  $2600. 
{House  Doc.  No.  101,  45  Cong.,  3  scss.) 

"^In  McKee  vs.  United  States  the  Supreme  Court  stated  that  Con- 
gress did  not  intend  by  the  act  of  March  2,  1891,  to  restore  the  whole 
value  of  the  property  sold  for  taxes.     (16-1  U.  S.  294.) 

"For  cases  in  which  the  Supreme  Court  construed  this  act  of  res- 
toration, see  164  U.  S.:  287,  294,  373.  For  similar  decisions  of  the 
Court  of  Claims  see  29  Ct.  Cls.  Reps.  231,  236;  30  ihid.,  p.  346;  31  ibid., 
p.  245. 


324  THE  CONSTITUTION  UNDER  LINCOLN 

cellaneous  property  abandoned  by  the  owners.  Much  of 
this  property  would  be  of  such  a  nature  that  the  mili- 
tary authorities  could  not  dispose  of  it ;  and  unless  some 
action  were  taken  it  would  be  left  without  ownership. 
To  meet  this  situation  Congress  passed,  March  12,  1863, 
the  act  relating  to  "captured  and  abandoned  prop- 
erty." ^*  Property  of  a  non-warlike  character  seized  by 
the  military  authorities  was  regarded  as  "captured," 
while  the  term  "abandoned"  was  held  to  apply  to  prop- 
erty "whose  owner  shall  be  voluntarily  absent  and  en- 
gaged in  aiding  or  encouraging  the  rebellion."  ^^  Gen- 
eral military  captures  of  private  property  were  of  course 
not  contemplated;  but  an  exception  was  made  of  cotton 
because  of  its  peculiar  commercial  importance,^®  and 
because  a  large  share  of  all  the  cotton  of  the  South  was 
in  reality  public  movable  property,  since  it  had  been 
acquired  in  one  way  or  another  by  the  Confederate  Gov- 
ernment.^^ The  LTnion  authorities,  therefore,  seized  all 
the  cotton  they  could  lay  hands  on;  but  the  other  mov- 
able property  taken  under  the  Captured  Property  Act 
was  negligible  in  amount.  Treasury  agents  were  to  be 
sent  throughout  the  South  to  take  over  the  property, 
forwarding  it  to  places  of  sale  in  the  loyal  States,  the 
proceeds  being  turned  into  the  national  treasury. 

This  act  was  essentially  an  exercise  of  the  "belligerent 
right  of  confiscation"  in  a  form  different  from  that  of  the 
confiscation  acts,  and  applying  to  property  which  the 
latter  could  not  reach.  The  competence  belonged  to 
Congress,  according  to  the  Supreme  Court,  to  provide 
for  the  forfeiture  of  the  property  of  all  persons  within 

"  U.  S.  Stat,  at  Large,  XII,  820. 

".Sen.  Doc.  No.  22,  40  Cong.,  2  sess.;  U.  S.  vs.  Padelford,  9  Wall.  531. 
"Mrs.   Alexander's    Cotton,   2   Wall.   404;    Whitfield    vs.   U.   S.,   92 
U.  S.  165. 
"House  Exec.  Doc.  No.  97,  39  Cong.,  2  scss. 


RESTORATION  OF  PROPERTY  325 

the  Confederacy,  loyal  as  well  as  disloyal,  on  the  prin- 
ciple that  all  inhabitants  of  enemy  territory  are  ene- 
mies.^^  This,  however,  would  have  been  an  extreme 
measure,  and  the  restoration  of  the  property  of  loyal 
citizens  was  therefore  provided  for  in  the  act.  In  so 
doing.  Congress  renounced  a  part  of  its  strict  belhgerent 
rights  as  the  Supreme  Court  understood  them. 

The  Treasury  Department  proceeded  vigorously  in 
carrying  out  the  provisions  of  this  law,  and  an  elaborate 
machinery  for  collecting  and  marketing  captured  prop- 
erty was  soon  developed.^^  This  machinery  included 
"supervising  agents,"  "local  agents,"  "agency  aids,"  and 
customs  ofl&cials  designated  for  this  work,  while  over  all 
there  was  a  "general  agent"  connected  with  the  treasury 
office  in  Washington, 

This  army  of  treasury  officials  which  was  thus  set 
upon  the  trail  of  captured  property  in  the  South  did 
not  find  their  chase  a  hoUday  pastime.  Though  within 
the  Union  lines,  they  were  in  the  enemy's  country;  and 
they  found  that  its  inhabitants  had  either  deserted  or 
were  hostile  to  the  removal  of  property.  Cases  of  per- 
sonal injury  to  the  officials  were  frequent  enough  to 
render  the  work  highly  dangerous.  Marks  and  other  evi- 
dences of  the  character  and  ownership  of  cotton  were 
often  destroyed;  and  cotton  was  hauled  to  the  woods 
or  swamps  and  concealed  in  advance  of  the  agent's  ar- 
rival, or  in  cases  where  this  was  impossible  it  was  fre- 
quently burned.  Agents  of  the  Confederate  Government 
were  at  the  same  time  abroad  through  the  South  col- 
lecting cotton;  and  this  complicated  the  work  of  the 
Union  officials,  while  it  increased  the  tendency  to  evasion 
on  the  part  of  owners.     Naturally  much  of  the  cotton 

•"Mrs.  Alexander's  Cotton,  2  Wall.  404,  419. 

"  A  mass  of  unpublished  material  in  the  archives  of  the  Treasury 
Department  constitutes  the  chief  source  for  this  portion  of  the  study. 


326  THE  CONSTITUTION  UNDER  LINCOLN 

collected  was  in  unfit  condition  and  in  need  of  over- 
hauling or  rebaling  before  being  put  on  the  market. 
Above  this  difl5.culty  there  still  remained  the  danger 
of  secret  raids  upon  the  government  depots,  resulting 
in  the  theft  or  demolition  of  the  cotton,  or  perhaps 
the  substitution  of  an  inferior  grade  for  that  contained 
in  the  government  stores.  Sales  were  required  to  be 
conducted  in  the  loyal  States,  but  a  serious  obstacle 
to  this  plan  was  the  lack  of  sufl5cient  means  of  trans- 
portation. Quartermasters  were  chiefly  concerned  with 
supplying  the  armies,  and  their  cooperation  with  treas- 
ury officials  for  the  removal  of  captured  property  was 
half-hearted. 

The  system  was,  as  might  have  been  expected,  pro- 
ductive of  fraud.  Inducements  were  offered  to  private 
individuals  for  collecting  cotton  and  this  led  to  many 
irregular  seizures.  Residents  sometimes  represented 
themselves  as  agents  and  simply  robbed  under  this  pre- 
tended authority,  while  some  of  the  agents  themselves 
committed  outrages  through  blunder  or  dishonesty. 
False  reports  might  be  submitted,  and  immediate  super- 
vision could  be  evaded  by  the  pretext  of  direct  orders 
from  Washington  to  dispose  of  the  cotton  in  some  other 
way  than  through  the  office  of  the  next  superior  agent. 

Considering  these  difficulties,  the  Captured  Property 
Act  was  quite  extensively  enforced;  for  we  find  that  by 
May,  1868,  the  gross  sales  amounted  to  about  thirty 
million  dollars,  while  the  net  proceeds  were  about 
twenty-five  million.  Of  the  property  thus  taken,  over 
ninety-five  per  cent  was  cotton. 

The  control  of  deserted  houses  and  plantations  was 
one  of  the  important  problems  involved  in  the  execu- 
tion of  the  Captured  Property  Act.  If  the  owner  was 
absent  aiding  the  "insurrection,"  his  property  was  legally 
regarded  as  "abandoned"  and  was  given  over  to  the 


RESTORATION  OF  PROPERTY  327 

jurisdiction  of  the  Treasury  Department.  No  attempt 
was  made  to  disturb  the  title  to  tliis  deserted  prop- 
erty, which  was  merely  held  under  the  temporary  con- 
trol of  the  Union  officials,  ready  to  be  returned  to  loyal 
owners  after  the  war  in  the  event  of  their  loyalty 
being  proved,  or  possibly  to  be  confiscated  if  owned 
by  a  "rebel." 

As  illustrated  by  the  case  of  Louisiana,  the  machinery 
for  administering  these  abandoned  estates  involved  a 
"plantation  bureau"  at  New  Orleans  in  charge  of  a 
"superintendent  of  plantations,"  under  whom  was  placed 
a  corps  of  agents  and  inspectors  whose  function  it  was 
to  keep  the  central  office  in  touch  with  the  large  num- 
ber of  lessees  and  occupants  to  whom  the  estates  were 
leased  or  granted.  Rents  and  proceeds  derived  from 
this  period  of  temporary  control  were  appropriated  by 
the  Government  and  placed  in  the  captured  property 
"fund."  -2 

The  wartime  disturbance  of  ordinary  conditions  of 
life  was  nowhere  more  strikingly  revealed  than  in  this 
system  of  operating  deserted  plantations.  Neglect  of 
improvements,  dilapidation  of  buildings,  and  deteriora- 
tion due  to  inexperienced  farming  were  everywhere  evi- 
dent. The  lessee's  interest  extended  only  to  the  har- 
vesting of  the  immediate  crop,  and  this  object  was 
furthered  in  disregard  of  the  permanent  up-keep  of  the 
property.  Several  plantations  might  at  times  be  in 
control  of  one  individual  or  firm  and  this  led  to  the 
transfer  and  indiscriminate  mixture  of  movable  property 
which  should  have  been  localized  in  particular  estates. 
The  negroes,  suddenly  shifted  to  a  free  status  and  a 

"These  statements  are  based  on  the  treasury  archives  which  include 
lists  of  plantations  administered  under  the  Treasury  Department,  plan- 
tation invefitories,  plantation  bureau  records,  inspectors'  reports,  and 
other  like  material. 


328  THE  CONSTITUTION  UNDER  LINCOLN 

system  of  lax  discipline,  became  unruly  and  faithless 
to  contract.  Offers  of  higher  wages  or  easier  work  would 
easily  seduce  them  from  one  plantation  to  another  and 
such  a  departure  of  laborers  might  occasion  the  loss  of 
a  whole  crop.  These  difficulties  were  enhancJed  by  the 
military  authorities,  w^ho  caused  constant  annoyance  by 
deporting  mules  without  compensation,  issuing  rations 
to  idle  negroes,  and  enrolling  "hands"  as  "contraband" 
troops.  Sometimes  a  plantation  was  occupied  for 
months  as  a  camp  or  recruiting  station,  making  cultiva- 
tion impossible. 

It  is  clear  that  the  essential  policy  embodied  in  the 
Captured  Property  Act  was  one  of  confiscation.  The 
Government  based  its  claim  to  the  proceeds  of  "cap- 
tured" property,  and  the  revenue  from  "abandoned" 
property,  upon  the  owner's  disloyalty.  It  should  be 
noted,  however,  that  seizures  under  the  act  did  not  in- 
volve final  condemnation,  since  the  statute  itself  con- 
templated relief  to  all  "loyal"  claimants  who  would, 
within  tw^o  years  after  the  close  of  the  war,  prove  their 
right  before  the  Court  of  Claims.  In  addition,  the  Presi- 
dent's proclamations  of  unconditional  pardon  and  gen- 
eral amnesty  finally  removed  all  distinction  between 
"loyal"  and  "disloyal"  owners,  and  required  the  restora- 
tion, so  far  as  practicable,  of  all  forfeited  property  rights. 
The  post-war  executive  policy,  and  the  pronouncements 
of  the  courts  regarding  the  intricate  legal  phases  of 
restoration,  require  careful  consideration;  and  these  mat- 
ters now  claim  our  attention. 

Ill 

There  appears  to  have  been  no  definite  executive  pol- 
icy concerning  confiscation  after  the  war.  Attorney 
General  Speed's  first  instructions  to  district  attorneys 
in  May,  1865,  directed  the  discontinuance  of  confisca- 


RESTORATION  OF  PROPERTY  329 

tion  proceedings;  but  these  orders  were  later  revoked, 
and  the  Government's  attorneys  were  instructed  not  only 
to  press  cases  then  pending,  but  to  begin  new  prose- 
cutions. "Undoubtedly  you  have  authority  to  proceed 
in  all  cases  where  property  is  confiscated  by  reason 
of  the  acts  of  its  owner  done  since  July  17,  1862,"  wrote 
the  acting  Attorney  General  to  the  district  attorney  at 
Providence  in  September,  1865.  "The  suppression  of 
the  rebellion  does  not  stop  the  execution  of  the  Con- 
fiscation Act."  2^ 

In  Virginia  particularly  many  new  confiscation  cases 
were  instituted  in  1865.  In  the  order  of  President 
Johnson  regarding  the  establishment  of  Federal  au- 
thority in  Virginia  after  the  close  of  the  war,  we  find 
the  following:  "The  Attorney  General  will  instruct  the 
proper  ofiicials  to  libel  and  bring  to  judgment,  confisca- 
tion and  sale,  property  subject  to  confiscation,  and  en- 
force the  administration  of  justice  within  said  State."  ^* 
In  accordance  with  this  order.  Speed  issued  a  special 
instruction  to  the  district  attorney  in  Virginia,  calling 
upon  him  to  "enforce  confiscation,"  and  this  intention 
of  the  Government  was  also  brought  to  the  notice  of 
Judge  Underwood  of  the  Federal  district  court.^^  Hun- 
dreds of  new  cases  were  docketed  during  the  summer 
of  1865,  the  three  chief  centers  being  Alexandria,  Nor- 
folk, and  Richmond.  Over  one  hundred  farms  and 
town  sites  in  and  around  Norfolk  were  actually  con- 
demned, put  on  sale,  and  the  larger  part  of  them  sold 
at  this  time.^^    Loud  and  numerous  were  the  complaints 

"  Attorney  General's  letter  books. 

"Executive  Order,  May  9,  1865:     O.  R.,  Ser.  Ill,  Vol.  5,  p.  14. 

*' Speed  to  Chandler,  May  13,  1865;  Speed  to  U.  S.  Marshal  Under- 
wood, May  13,  1865:     Attorney  General's  Letter  Books. 

"Chicago  Tribune,  Oct.  2,  1865,  p.  1,  and  Nov.  17,  1865,  p.  1.  The 
writer  has  found  in  the  Federal  court  records  at  Richmond  about  four 
hundred  confiscation  cases  initiated  after  the  close  of  the  war. 


330  THE  CONSTITUTION  UNDER  LINCOLN 

that  the  people  of  Virginia  were  unnecessarily  vexed, 
and  that  private  ends  were  served  in  the  execution  of 
the  Confiscation  Act. 

It  was  not  long,  however,  before  a  decided  reversal 
of  policy  was  to  be  observed  in  the  matter  of  confisca- 
tion. In  contradiction  of  the  earlier  instruction  which 
emanated  from  his  office,  the  Attorney  General  wrote 
in  June,  1866,  concerning  the  second  Confiscation  Act: 
"I  think  it  was  a  war  measure  and  expired  with  the 
war."  Seizures  in  Virginia  had  been  halted  in  Septem- 
ber, 1865,  and  in  December  Speed  wrote  concerning 
the  "confiscation  docket"  in  Florida  that  it  was  not  the 
wish  of  the  Government  to  persecute  by  confiscation 
those  who  were  obedient  to  law,  but  rather  persons 
known  to  be  contumacious  or  rebellious.  "Impressing 
you  with  the  idea  that  the  Government  not  only  desires 
to  be  magnanimous,  but  can  afford  to  be  so,"  he  said 
to  the  district  attorney,  'T  instruct  you  to  dismiss  con- 
fiscation proceedings  at  your  discretion  or  to  continue 
or  try,  always  saving  costs  so  far  as  you  can."  -'^ 

In  these  instructions  it  will  be  noticed  that  the  se- 
lection of  a  few  flagrant  cases  rather  than  a  general 
prosecution  of  the  confiscation  law  seemed  to  be  the 
administration's  policy,  as  in  the  matter  of  treason  at 
this  time.  It  may  be  added  that  poverty  was  a  fac- 
tor which  in  part  determined  the  Government's  atti- 
tude. A  rather  surprising  instruction  which  calls  to 
mind  Johnson's  discrimination  against  men  of  wealth 
in  issuing  pardons,  appeared  in  Attorney  General 
Speed's  comment  on  a  New  York  case  in  which  applica- 
tion had  been  made  for  the  dismissal  of  confiscation 
proceedings.    "If  Mrs.  G is  now  a  loyal  woman  and 


"This  niatorial  is  derived  from   the   Attorney  General's  papers  and 
letter  books. 


RESTORATION  331 

in  need,"  he  said,  "it  might  help  her  application.  On 
the  other  hand,  if  she  is  still  a  rebel  and  rich,  I  do  not 
think  that  the  Government  should  let  go  its  hold  upon 
her  property." 

This  renewed  execution  of  the  confiscation  acts  after 
the  war  naturally  occasions  surprise  and  may  seem  dif- 
ficult to  account  for.  Viewed  from  any  standpoint  the 
acts  of  confiscation  were  war  measures  and  virtually, 
though  not  legally,  the  war  ended  when  Lee's  and  John- 
ston's armies  surrendered  in  April,  1865.  Why,  then, 
should  the  practical  close  of  the  war  serve  as  the  occa- 
sion for  an  intensified  enforcement  of  war  measures? 

The  answer  is  not  far  to  seek,  and  is  to  be  found  in 
those  same  circumstances  which,  for  a  time,  produced 
increased  activity  in  the  bringing  of  treason  indictments. 
One  of  the  purposes  of  these  penal  statutes  was  the 
punishment  of  Southern  "rebels"  (or  perhaps,  the  more 
conspicuous  leaders  among  them)  and  it  was  not  until 
the  close  of  the  war  that  this  intention  could  be  realized. 
The  imprisonment  of  Davis  and  others  prominent  in 
the  Confederacy  shows  that  such  a  purpose  was,  for  a 
time,  seriously  entertained.  Furthermore,  the  thou- 
sands of  prosecutions  and  damage  suits  brought  against 
Union  men  by  returned  Confederates,  and  the  more  or 
less  extensive  persecution  of  loyal  men  in  the  South, 
produced  a  strong  sentiment  for  retaliation.  It  was  the 
inevitable  aftermath  of  civil  war.  Besides,  the  vindic- 
tive reconstructionists  were  clamoring  for  severe  meas- 
ures, and  their  influence  could  not  be  ignored  by  the 
administration. 

It  should  always  be  remembered,  however,  that  this 
renewed  zeal  for  punishing  "rebellion"  spent  itself  before 
the  object  was  really  attained.  By  the  bringing  of  in- 
dictments and  the  filing  of  libels  against  property  the 
courts  were  crowded  with  cases;  but  actual  confiscation 


332  THE  CONSTITUTION  UNDER  LINCOLN 

was  rare,  just  as  executions  for  treason  were  unknown. 
The  disposition  to  press  confiscation  proceedings  as  an 
after-war  punishment  was,  in  fact,  only  a  passing  phase. 
Beginning  with  September,  1865,  the  Government  halted 
proceedings  by  various  special  instructions  to  district 
attorneys;  and  from  this  time  on  the  cases  were  con- 
tinued or  suspended  until  they  were  finally  dismissed 
in  1866  and  1867.  Though  the  administration  pre- 
ferred, for  a  year  or  two,  to  retain  confiscation  as  a 
potential  weapon  and  to  begin  proceedings  in  many  in- 
dividual cases,  its  policy  usually  stopped  short  of  the 
actual  condemnation  of  property;  and  zealous  efforts  to 
accomplish  such  condemnation  were  frequently  re- 
strained by  the  authorities  at  Washington. 


IV 

In  considering  the  restoration  of  property  after  the 
war,  the  distinction  between  the  various  kinds  of  for- 
feiture must  be  noted.  Where  property  was  taken  under 
the  confiscation  acts  a  full  judicial  process  had  always 
been  completed,  culminating  in  a  decree  of  condemna- 
tion and  a  sale  conferring  title  upon  a  new  purchaser, 
while  the  proceeds  went  to  the  Federal  treasury.  Seiz- 
ures under  the  Captured  Property  Act,  however,  did  not, 
as  we  have  seen,  involve  a  conclusive  transfer  of  title, 
but  rather  a  conditional  acquisition  by  the  Govern- 
ment, subject  to  possible  restoration  where  loyalty  could 
be  proved.  These  two  kinds  of  seizures  involved  radical 
differences,  both  as  to  principle  and  method,  when  the 
question  of  restoration  presented  itself;  and  they  will 
therefore  require  separate  treatment. 

In  all  cases  of  restoration,  the  primary  consideration 
was  the  efi'ect  of  pardon.  Both  of  the  confiscation  acts 
were  silent  on  the  subject  of  restoration,  but  when  the 


RESTORATION  OF  PROPERTY  333 

executive  department  announced  its  policy  of  pardon 
the  effect  of  this  action  upon  forfeited  property  rights 
inevitably  presented  itself.  The  jQrst  pardon  proclama- 
tion of  President  Lincoln,-^  and  the  first  three  of  Presi- 
dent Johnson, 2^  contained  various  conditions,  one  of 
which  was  the  stipulation  that  confiscated  property 
should  not  be  returned;  but  finally  a  proclamation  of 
December  25,  1868,  declared  an  unconditional  pardon 
for  all,  without  the  requirement  of  an  oath,  and  with- 
out any  reservation  whatsoever.^ ^  The  layman  might 
hastily  conclude  that  this  unqualified  pardon  would  re- 
quire the  restitution  of  property  where  it  had  been  con- 
fiscated ;  but  the  legal  effect  of  pardon  ^^  in  cases  of  this 
sort  was  a  matter  of  judicial  interpretation  and  hence 
outside  of  executive  authority,  while  the  principles  of 
law  which  were  invoked  in  its  decision  transcended  ordi- 
nary intelligence. 

As  regards  the  act  of  1861,  the  Supreme  Court,  in 
the  case  of  Armstrong's  Foundry  (decided  in  1867),^^ 
held  that  the  statute  regarded  the  owner's  consent  to 
the  hostile  use  of  the  property  as  an  offense  for  which 

"  Lincoln's  proclamation  of  pardon,  Dec.  8,  1863 :  U.  S.  Stat,  at 
Large,  XIII,  737. 

"Johnson's  pardon  proclamations,  May  29,  1865;  Sept.  7,  1867;  July 
7,  1868:  U.  S.  Stat,  at  Large,  XIII,  758;  XV,  700,  702.  In  these 
general  proclamations  of  pardon,  rights  of  property  were  restored  "ex- 
cept as  to  any  property  of  which  any  person  may  have  been  legally 
divested  under  the  laws  of  the  United  States."  President  Johnson  was 
liberal  in  the  granting  of  individual  pardons.  The  list  issued  on  July 
19,  1867,  included  3600  names  and  that  of  December  4,  1867,  6400 
names.  {House  Exec.  Doc.  No.  32,  40  Cong.,  1  sess.;  ibid.,  No.  16, 
40  Cong.,  2  sess.)  These  special  pardons,  however,  did  not  restore 
confiscated  property. 

"  U.  S.  Stat,  at  Large,  XV,  712. 

"The  subject  of  pardon  under  the  administrations  of  Lincoln  and 
Johnson  is  discussed  by  J.  T.  Dorris  in  a  doctoral  dissertation  entitled 
"Pardon  and  Amnesty  during  the  Civil  War  and  Reconstruction," 
submitted  to  the  University  of  Illinois  in  1926. 

"6  Wall.  766. 


334  THE  CONSTITUTION  UNDER  LINCOLN 

confiscation  was  the  penalty;  hence,  pardon  would  re- 
store to  the  claimant  that  portion  of  the  proceeds  which 
went  to  the  Government.  As  to  the  informer's  share, 
no  opinion  was  expressed. 

A  different  line  of  interpretation  was  followed  in  the 
case  of  the  second  Confiscation  Act,  for  here  the  court 
declared  that  not  even  universal  amnesty  could  restore 
lost  property  rights.  The  court  argued  that  this  act 
was  passed  in  exercise  of  belligerent  rights,  not  for  the 
punishment  of  treason;  and  that  the  pardon  of  the 
"traitor"  could  not  relieve  him  of  the  forfeiture.^^  It 
was  further  held  that  property  which  had  been  sold  to  a 
purchaser  in  good  faith  and  for  value  could  not  be  in- 
terfered with,  and  that  proceeds  deposited  in  the 
treasury  were  beyond  the  reach  of  judicial  action,  since 
Congress  alone  has  power  to  reappropriate  money  con- 
veyed into  the  treasury.^'*  The  well-known  practice  by 
which  Congress  regularly  does  appropriate  money  to 
cover  financial  judgments  against  the  United  States 
seems  not  to  have  been  given  its  due  weight. 

The  judicial  interpretation  of  the  two  acts  is  some- 
thing of  a  puzzle,  for  it  does  not  appear  that  any  broad 
underlying  principles  were  consistently  adhered  to.  The 
inconsistency  appears  especially  when  we  compare  the 
decisions  concerning  restoration  as  the  result  of  pardon 
with  the  earlier  decisions  as  to  the  extent  and  duration 
of  the  forfeiture.  In  the  case  of  the  act  of  1S61  the 
whole  title  in  fee  was  held  to  be  sun-endered  on  the 
ground  that  the  proceeding  was  merely  against  the  prop- 
erty; ^^  but,  when  the  question  of  restoration  came  up, 
the  punitive  nature  of  the  act  was  recognized  in  the 

"Scmmes  vs.  U.  S.,  91  U.  S.  27. 

"Knote  vs.  U.  S.,  95  U.  S.  149;  Wallach  vs.  Van  Riswick,  92  U.  S.  202; 
Osbom  vs.  U.  S.,  91  U.  S.  474. 

"Kirk  vs.  Lynd,  106  U.  S.  315;  supra,  pp.  286-287. 


RESTORATION  OF  PROPERTY  335 

decision  that  the  pardoned  owner  was  entitled  to  that 
share  of  the  proceeds  which  went  to  the  Government. 
In  seizures  under  the  act  of  1862,  the  court  allowed 
only  the  life  interest  to  be  forfeited,^ ^  thus  at  least 
partly  recognizing  the  confiscation  as  a  penalty  for  a 
criminal  offense;  but  no  recovery  was  allowed  by  reason 
of  pardon,  on  the  ground  that  the  taking  of  the  property 
was  not  in  the  nature  of  a  punishment,  but  was  a  weapon 
of  belUgerency. 

Another  inconsistency,  upon  which  the  expressions  of 
the  Supreme  Court  throw  little  light,  has  to  do  with  the 
restitution  of  proceeds  deposited  in  the  national  treas- 
ury. Such  restitution  was  allowed  in  the  case  of  Ann- 
strong's  Foundry,^''  nothing  being  said  about  the  exclusive 
right  of  Congress  to  control  the  appropriation  of  money ; 
but  in  Knote  vs.  United  States,^^  one  of  the  prominent 
cases  concerning  the  second  Confiscation  Act,  this  ex- 
clusive function  of  Congress  was  made  one  of  the  chief 
grounds  for  refusing  restoration. 

In  the  case  of  confiscations  completed  by  judicial  proc- 
ess, then,  restoration  was  possible  as  a  result  of  pardon 
only  where  the  property  had  been  condemned  under 
the  act  of  1861,  and  then  only  the  Government's  share 
of  the  proceeds  was  returned.  Considering  the  com- 
paratively small  number  of  condemnations  under  the 
earlier  act,  it  is  evident  that  this  class  of  restorations  was 
insignificant. 


For  seizures  under  the  Captured  Property  Act,  the 
procedure  regarding  restoration  was  quite  different  from 


"Bigelow  vs.  Forrest,  9  Wall.  339;  supra,  p.  286. 
"6  Wall.  766. 
"95  U.  S.  149. 


336  THE  CONSTITUTION  UNDER  LINCOLN 

that  which  we  have  just  considered.  Though  much  of 
the  work  of  restoration  was  done  by  the  Treasury  De- 
partment, and  also  by  the  Freedraen's  Bureau  (which 
was  forced  to  part  with  the  greater  portion  of  the  prop- 
erty once  under  its  control  and  was  thus  disappointed 
in  its  prospect  of  making  allotments  to  freedmen),  these 
releases  were  but  incidental;  and  the  primary  agency 
for  determining  these  restorations  was  the  Court  of 
Claims.  By  the  original  act  relating  to  captured  and 
abandoned  property  the  Court  of  Claims  was  desig- 
nated as  the  tribunal  before  which  claims  for  the  restora- 
tion of  property  should  be  preferred;  ^^  and  by  a  fur- 
ther enactment  of  July  27,  1868,  the  remedy  thus  given 
was  declared  to  be  exclusive,  precluding  the  claimant 
from  "suit  at  common  law,  or  any  other  mode  of  re- 
dress whatever."  ^°  Upon  proof  of  ownership  and 
loyalty,  the  claimant  was  to  be  entitled  to  the  residue 
of  the  proceeds  of  his  property  after  deducting  neces- 
sary expenses  for  sale  and  other  incidental  matters. 

In  dealing  with  these  cases  the  Court  of  Claims  fol- 
lowed, not  too  rigidly,  certain  rules  of  its  own  making. 
It  required  the  claimant  to  show  that  he  was  the  owner 
of  the  property  claimed  and  that  he  had  never  given 
aid  or  comfort  to  the  "rebelhon."  The  Government  was 
not  to  be  loaded  with  the  burden  of  proving  disloyalty. 
Voluntary  residence  in  an  insurrectionary  district  was 
taken  as  prima  jade  evidence  of  a  rebellious  char- 
acter; and  this  must  be  rebutted  by  satisfactory  testi- 
mony covering  the  whole  period  of  the  war,  and  show- 
ing that  no  act  of  sympathy  to  the  Confederate  move- 
ment had  been  wiUingly  performed.''^ 

"  U.  S.  Stat,  at  Large,  XII,  820,  sec.  3. 

*'Ibid.,  XV,  243,  sec.  3. 

^For  typical  decisions  of  the  Court  of  Claims  on  this  subject,  see 
Ct.  of  Cls.  Reps,  as  follows:  III,  19,  177,  218,  240,  390;  IV,  337;  V, 
412,  586,  706. 


RESTORATION  OF  PROPERTY  337 

The  Court  of  Claims  thus  became  the  tribunal  for 
judging  the  facts  as  to  the  conduct  of  thousands  of 
professed  Unionists  in  the  South  and  its  hearings  as- 
sumed somewhat  the  character  of  a  judgment-day  pro- 
ceeding, where,  after  the  deeds  of  all  had  been  laid 
bare,  the  faithful  were  rewarded  and  the  rebellious 
turned  away.  The  voluminous  testimony  which  the 
court  examined  constitutes  a  significant  body  of  mate- 
rial revealing  in  detail  the  conduct  of  "loyal"  South- 
erners; and  for  the  historian  who  takes  up  the  study 
of  the  Civil  War  loyalists  it  will  have  a  value  similar 
to  that  of  the  papers  of  the  New  York  royal  commis- 
sion for  the  study  of  the  corresponding  topic  in  the 
Revolutionary  War.^^ 

Men  and  women  of  Union  sympathies,  as  this  testi- 
mony shows,  were  scattered  in  considerable  numbers 
throughout  the  South.  Surrounded  as  they  were  by  a 
repressing  and  persecuting  majority,  they  naturally 
found  it  diJB&cult  to  express  their  loyalty  in  any  active, 
organized  form.  They  had  to  be  content,  therefore, 
with  a  negative  attitude,  a  sort  of  "passive  resistance," 
refusing  to  take  any  voluntary  measures  against  the 
Government  at  Washington,  and  performing  individual 
acts  of  friendship  to  the  Federal  troops.  We  find  them 
resisting  the  Confederate  draft,  carrying  provisions  and 
medicine  to  Union  soldiers,  contributing  to  funds  for 
the  welfare  of  the  blue-coats,  attending  the  boys  in  the 
hospitals,  and  in  other  ways  befriending  the  Union 
cause. 

This  "loyalty,"  which  meant  treason  from  the  Con- 
federate standpoint,  naturally  incurred  local  persecu- 
tion; and  the  Unionist  of  the  South  moved  constantly 
in  an  atmosphere  of  scorn  and  prejudice,  continually 

"  C.  H.  Van  Tyne,  The  Loyalists  in  the  American  Revolution. 


338  THE  CONSTITUTION  UNDER  LINCOLN 

disturbed  by  threats  of  personal  violence.  Furthermore, 
he  was  often  compelled  against  his  will  to  give  support 
to  the  Southern  cause.  It  was  an  exceptional  L^nionist 
indeed  who  was  not  pressed  into  the  conscript  lines, 
compelled  to  subscribe  to  a  Confederate  loan,  or  forced 
to  labor  on  intrenchments;  and  in  addition  to  all  tliis, 
he  must  pay  taxes  into  the  "rebel"  treasury.  Children 
even  caught  up  the  feud,  and  the  refusal  of  one  daring 
youth  to  give  up  the  Stars  and  Stripes  for  the  neighbor 
boys  to  spit  upon  resulted  in  a  severe  laceration,  and 
later  a  fatal  blow  from  a  brickbat. 

In  conducting  these  suits,  the  Court  of  Claims  found 
its  docket  well  crowded.  The  total  amount  paid  out  in 
judgments  in  such  cases  up  to  February,  1888,  was  re- 
ported as  $9,864,300.-*3  When  we  remember  that  the 
sum  involved  in  each  case  was  usually  small,  and  that 
these  figures  represent  only  the  claims  which  were  al- 
lowed, we  can  form  an  idea  of  the  vast  amount  of  this 
litigation  which  the  court  handled. 

The  central  point  of  law  touching  these  claims  was 
the  effect  of  pardon  and  amnesty  upon  the  rights  of 
claimants  for  property  seized  during  the  war.  Were 
disloyal  owners  permanently  divested  of  their  property 
by  that  proviso  which  required  proof  that  the  owner  had 
"never  given  any  aid  or  comfort  to  the  .  .  .  rebel- 
lion,"^* or  could  the  consequences  of  disloyalty  be 
avoided  by  the  President's  proclamation  of  pardon  and 
amnesty,  and  the  owner's  acceptance  of  tlie  oath  of  al- 
legiance? This  question  was  presented  in  the  case  of 
United  States  vs.  Klein,  appealed  from  the  Court  of 
Claims  to  the  Supreme  Court. "'^    The  most  liberal  view 

"  Treasury  Department  Circular,  Jan.  9,  1900,  No.  4.  For  a  list  of 
judgments  by  the  Court  of  Claims  from  1863  to  1867,  see  House  Misc. 
Doc.  No.  50,  40  Cong.,  1  sess.,  pp.  2-9. 

^'Sec.  3  of  the  Captured  Property  Act:    U.  S.  Slat,  at  Large,  XII,  820. 

"  13  Wall.  128. 


RESTORATION  OF  PROPERTY  339 

was  sustained.  In  main  substance  the  opinion  was  that 
Congress  had  intended  to  restore  property  not  only  to 
loyal  owners,  but  to  those  who  had  been  hostile  and 
might  later  become  loyal;  that  after  the  proclamation 
of  general  amnesty  the  restoration  of  property  to  all 
bona  fide  owners  claiming  under  the  Captured  Property 
Act  became  the  duty  of  the  Government;  and  that  such 
restoration  became  the  ''absolute  right  of  the  persons 
pardoned,"  the  Government  having  constituted  itself  the 
trustee,  not  only  for  claimants  protected  by  the  original 
act,  but  for  all  who  might  later  be  recognized  as  en- 
titled to  their  property.  "Pardon  and  restoration  of 
political  rights,"  declared  the  court,  "were  in  return 
for  the  oath  and  its  fulfillment.  To  refuse  it  would  be 
a  breach  of  faith  not  less  cruel  and  astounding  than 
to  abandon  the  freed  people  whom  the  executive  had 
promised  to  maintain  in  their  freedom." 

After  this  decision  of  the  Supreme  Court,  therefore, 
all  claimants  who  had  been  dispossessed  through  the 
operation  of  the  Captured  Property  Act  were,  regard- 
less of  original  loyalty,  entitled  to  restoration.  There 
was,  however,  another  proviso  in  the  act  which  more 
seriously  affected  the  claimant's  prospect  of  recovery. 
Suit  for  recovery  must  be  brought,  according  to  the  law, 
within  two  years  "after  the  suppression  of  the  rebel- 
lion." ^^  The  President's  proclamation  of  August  20, 
1866,  in  which  for  the  first  time  the  entire  suppression 
of  the  rebellion  throughout  the  country  was  declared, 
was  taken  by  the  court  as  marking  the  legal  termina- 
tion of  the  war.'*^  Unfortunately  for  the  claimants,  the 
decision  in  the  Klein  case  did  not  come  until  1871,  so 
that  those  who  could  not  claim  original  loyalty  first 


*■  U.  S.  Stat,  at  Large,  XII,  820,  sec.  3. 
*'U.  S.  vs.  Anderson,  9  Wall.  56. 


340  THE  CONSTITUTION  UNDER  LINCOLN 

learned  of  the  restoring  effect  of  pardon  too  late  for 
a  claim  to  be  allowed,  supposing  that  the  two-year 
limitation  should  be  insisted  upon.  Agitation  was  be- 
gun to  obtain  relief  for  those  claimants  who,  under  the 
former  requirement  of  loyalty,  had  allowed  the  two- 
year  limitation  to  lapse  without  taking  advantage  of 
their  right  to  plead  before  the  Court  of  Claims.  Various 
bills  to  revive  the  right  of  such  claimants  have  been 
presented  to  Congress,  and  the  House  Committee  on 
Judiciary  has  at  various  times  reported  favorably  on 
such  legislation;  but  the  proposed  bills  and  committee 
reports  have  been  lost  in  the  general  oblivion  of  the 
congressional  calendar."*^ 

As  to  abandoned  estates,  restoration  moved  much 
more  swiftly.  The  chief  agency  for  this  purpose  was 
the  Bureau  of  Refugees,  Freedmen  and  Abandoned 
Lands.  This  institution  was  created  by  Congress,  March 
3,  I860,  to  provide  protection  and  support  for  emanci- 
pated negroes;  and  abandoned  real  property,  as  well  as 
certain  other  property,  was  entrusted  to  its  adminis- 
tration.*^ Estates  which  had  been  administered  on  a 
lease  system  by  treasury  agents  w^ere  placed  in  charge 
of  the  bureau,  with  the  intention  that  deserted  lands 
should  be  allotted  in  small  holdings  to  individual  freed- 
men. Some  land  was  actually  assigned  in  South  Caro- 
lina and  Georgia,  but  in  general  the  bureau  either  used 
its  land  for  colonies  of  freedmen  or  continued  the  lease 
system  until,  by  President  Johnson's  order,  it  was  in- 
structed in  August,  1865,  to  return  the  property  of  all 
who  had  been  pardoned.  As  Commissioner  Howard's 
reports  show^  the  uncertainty  of  tenure  over  the  bu- 


^'The  bill  introduced  on  April  30,  1921,  by  Mr.  Overstreet  is  typical. 
//.  R.  5592,  67  Cong.,  1  sess.  See  also  House  Reports  as  follows:  51 
Conft.,  1  sess..  No.  784;  52  Cong..  1  sess..  No.  1377. 

*  U.  S.  Stat,  at  Large,  XIII,  507. 


RESTORATION  OF  PROPERTY  341 

reau's  holdings  defeated  the  plan  of  allotments  to  freed- 
men ;  and  the  occupation  of  these  estates  was  only  tem- 
porary. The  bureau  restored  15,452  acres  of  land 
seized  under  the  second  Confiscation  Act,  14,652  acres 
received  as  abandoned  and  allotted  to  freedmen,  and 
400,000  acres  of  abandoned  property  which  had  never 
been  allotted.  Thus  the  total  restorations  amounted  to 
430,104  acres.^" 

Taking  the  subject  of  restoration  as  a  whole,  it  may 
be  said  that  the  policy  pursued  by  Congress  and  the 
courts  left  much  to  be  desired.  In  particular,  the  fail- 
ure to  allow  the  restoration  of  property  taken  under 
the  second  Confiscation  Act,  and  the  inaction  which  has 
allowed  a  minor  proviso  in  the  Captured  Property  Act, 
regarding  a  mere  time  limitation  for  the  filing  of  a 
claim,  to  defeat  a  recognized  right  of  recovery,  afe 
sources  of  disappointment.  Though  the  general  notion 
as  to  the  number  of  dispossessed  owners  is  doubtless  ex- 
aggerated, yet  one  cannot  but  wish  that  the  general 
oblivion  which  has  removed  former  disabilities  from 
those  who  adhered  to  the  Southern  cause,  could  have 
brought  restoration  for  every  case  of  confiscated  or  cap- 
tured property. 

^Autobiography  of  Oliver  O.  Howard,  II,   Ch.  xlix;   House  Exec. 
Docs.,  39  Cong.,  1  sess.,  Nos.  11,  70,  99. 


CHAPTER  XV 

STEPS   TOWARD   EMANCIPATION 

I.   The  belligerent  right  of  emancipation:    The  war  power 

of  Congress  over  slavery 
II.   How  the  war  forced  the  question  of  emancipation  upon 
the   government:     Policy    with   regard   to   military 
emancipation  and  the  return  of  fugitive  slaves 

III.  Emancipation  in  relation  to  confiscation 

IV.  Liberation  of  slave-soldiers:    Other  emancipating  meas- 

ures of  Congress 
V.   Lincoln's  plan  of  gradual  abolition  by  State  action 
with  Federal  compensation 

We  shall  consider  in  this  and  the  following  chapter 
not  the  general  bearings  of  the  oft-discussed  subject  of 
emancipation  as  a  matter  of  policy,  but  rather  those 
questions  of  governmental  power  and  authority  which 
the  subject  involves.  Our  first  inquiry  will  concern 
itself  with  the  problem  of  the  war  power  over  slavery. 
The  authority  which  the  National  Government  was  led 
to  assume  by  the  compulsion  of  circumstances  in  op- 
position to  an  avowed  policy  of  non-interference  will 
then  be  examined  and  this  will  be  found  to  involve 
tentative  steps  toward  emancipation,  as  in  the  confisca- 
tion acts.  Our  attention  will  then  turn  to  Lincoln's 
earnestly  advocated  proposal  for  gradual  abolition  by 
State  action  with  Federal  compensation  to  slave  own- 
ers. An  analysis  of  the  executive  proclamation  of  free- 
dom will  follow,  after  which  we  will  note  those  conflicts 
of  authority  which  were  characteristic  of  that  transi- 
tional stage  when  the  question  of  slavery,  though  dealt 

342 


STEPS  TOWARD  EMANCIPATION         343 

with  piecemeal  by  various  national  measures,  was  still 
within  the  domain  of  State  jurisdiction.  Finally,  our 
attention  will  be  directed  to  the  constitutional  amend- 
ment which  was  adopted  as  the  only  way  out  of  the  un- 
certainty and  confusion  touching  slavery  which  the  war 
bequeathed. 


It  was  a  generally  accepted  axiom  of  American  con- 
stitutional law  in  1861  that  slavery  was  a  domestic  in- 
stitution of  the  States,  and  that  as  a  State  institution 
it  was  outside  Federal  jurisdiction.  When  the  Civil 
War  came,  however,  it  was  widely  believed  that  the 
Government  acquired  a  power  in  this  field  which  in 
peace  times  it  did  not  have.  This  extraordinary  author- 
ity to  strike  at  slavery  during  the  great  national  emer- 
gency is  what  we  mean  by  the  "war  power  over  slavery." 
Some  there  were  who  justified  this  war  power  by  claim- 
ing the  ''belligerent  right"  of  emancipating  an  enemy's 
slaves — a  right  which  they  held  to  be  within  the  laws 
of  war — while  others  maintained  that  the  question  was 
domestic,  not  international,  and  that  control  over  local 
affairs  normally  lying  within  State  jurisdiction  could  be 
assumed  by  the  National  Government  as  an  enlarged 
municipal  power  growing  out  of  insurrection  and  civil 
war. 

Prior  to  the  Civil  War  the  American  tendency  had 
been  to  deny  the  right  of  liberating  an  enemy's  slaves 
as  coming  within  the  recognized  laws  and  usages  of 
modern  warfare.  This  was  a  natural  attitude  for  the 
principal  slaveholding  country  in  the  world  where  the 
domestic  slaveholding  interest  inevitably  affected  inter- 
national policy.  Lord  Dunmore's  proclamation  decree- 
ing freedom  to  the  slaves  of  Virginia  "rebels"  was  a 


344  THE  CONSTITUTION  UNDER  LINCOLN 

familiar  theme  for  denunciatory  comment  by  the 
patriots  of  the  Revolution;  and  the  activity  of  the  Brit- 
ish commanders  in  deporting  American  slaves  at  the 
close  of  the  Revolutionary  War  occasioned  a  wordy  con- 
troversy between  the  United  States  and  England.  But 
perhaps  the  chief  instance  which  came  to  mind  when 
the  subject  was  broached  was  the  action  of  the  British 
in  enticing  slaves  from  American  masters  during  the 
War  of  1812  and  in  carrying  them  off  in  alleged  viola- 
tion of  the  Treaty  of  Ghent. ^  It  will  be  worth  our 
while  to  observe  how  this  situation  drew  from  John 
Quincy  Adams,  our  Secretary  of  State,  an  emphatic  pro- 
test and  a  vigorous  denial  of  the  belligerent  right  of 
emancipation.  Thus  the  New  England  statesman  who 
has  been  credited  with  originating  the  policy  which  took 
form  in  Lincoln's  Emancipation  Proclamation  was, 
strangely  enough,  the  author  of  the  most  weighty  ut- 
terances opposing  the  war  power  over  slavery. 

In  1814  Cochrane,  the  British  Admiral,  issued  a  proc- 
lamation which  referred  to  the  desire  of  "many  persons 
now  resident  in  the  United  States  ...  to  withdraw 
therefrom,  with  a  view  of  entering  his  Majesty's  service, 
or  of  being  received  as  free  settlers  in  some  of  his 
Majesty's  Colonies."  The  proclamation  continued  in 
these  words: 

This  is  therefore  to  give  notice 

That  all  those  who  may  be  disposed  to  emigrate  from  the 
United  States  will,  with  their  families,  be  received  on  board 
his  Majesty's'  .  .  .  vessels  of  war,  or  at  the  military  posts 
that  may  be  established  upon  or  near  the  coast  of  the  United 
States  where  they  will  have  the  choice  of  either  entering  into 
his  Majesty's  sea  or  land  forces,  or  of  being  sent  free  settlers 

*J.  B.  Moore,  Digest  o}  International  Arbitrations,  I,  350  et  seq. 


STEPS  TOWARD  EMANCIPATION         345 

to  the  British  possessions  in  North  America,  or  the  West 
Indies,  where  they  will  meet  with  all  due  encouragement.^ 


The  main  purpose  and  effect  of  this  proclamation 
was  to  entice  slaves  from  American  masters  and  liberate 
them.  In  the  Treaty  of  Ghent  the  restoration  of  such 
slaves  along  with  other  "private  property"  was  stipu- 
lated; but,  in  spite  of  the  treaty,  slaves  were  carried 
away  in  the  process  of  British  evacuation.  Since  the 
precise  meaning  of  the  treaty  provision  was  a  matter 
of  disagreement  between  the  two  nations,  the  question 
was  referred  to  arbitration  by  the  Emperor  of  Russia; 
and  it  is  in  the  dispatches  pertaining  to  this  arbitra- 
tion that  Adams'  most  significant  statements  are  found. 
He  sent  a  carefully  worded  instruction  on  this  subject 
to  Henry  Middleton  ^  in  1820,  which  contained  the  fol- 
lowing passage : 

The  distinction  in  the  language  of  the  Article  [i.e.,  the  first 
article  of  the  treaty  of  Ghent],  as  strong  as  words  can  make 
it,  between  public  property  .  .  .  and  private  property  in- 
cluding slaves  is  this.  Public  property  by  the  Laws  of  War 
is  liable  to  be  taken,  and  applied  by  the  captor  to  his  own 
use.  Private  property  on  shore  by  the  same  Laws  of  War  is 
protected  from  capture,  and  ought  not  to  be  taken  at  all. 

With  the  exception  of  maritime  captures,  private  property 
in  captured  places  is  by  the  usages  of  civilized  nations  re- 
spected. .  .  .  The  British  nation  as  well  as  the  United  States 
consider  slaves  as  property  .  .  .  ;  millions  of  such  slaves  are 
held  as  property  in  the  British  Dominions  and  they  are  recog- 
nized as  such  by  the  terms  of  the  Article. 


'Ibid.,  I,  350. 

'U.  S.  Minister  at  St.  Petersburg. 


346   THE  CONSTITUTION  UNDER  LINCOLN 

Mr.  Adams  then  referred  to  Cochrane's  proclamation 
and  continued  as  follows: 

It  is  not  openly  addressed  to  slaves,  nor  does  it  avow  its 
real  object.  From  the  use  of  the  phraseology  which  it  adopts, 
the  inference  is  conclusive  that  the  real  object  was  such  as  the 
Admiral  did  not  choose  to  avow,  and  the  only  supposable 
motive  for  the  disguise  is  the  consciousness  that  it  was  not 
conformable  to  the  established  usages  of  war  among  civihzed 
nations.  The  wrong  was  in  the  proclamation.  Admiral  Coch- 
rane had  no  laivful  authority  to  give  freedom  to  the  slaves 
belonging  to  the  citizens  of  the  United  States.*  The  recognition 
of  them  by  Great  Britain,  in  the  treaty,  as  property,  is  a  com- 
plete disclaimer  of  the  right  to  destroy  that  property  by  mak- 
ing them  free.^ 

Writing  again  to  Middleton  on  the  same  subject,  on 
November  6,  1820,  Mr.  Adams  said: 

In  the  statement  of  the  British  ground  of  argument  .  .  .  , 
they  have  broadly  asserted  the  right  of  emancipating  slaves — 
private  property — as  a  legitimate  right  of  war.  This  is  utterly 
incomprehensible  on  the  part  of  a  nation  whose  subjects  hold 
slaves  by  millions,  and  who  in  this  very  Treaty  recognize  them 
as  private  property.  No  such  right  is  acknowledged  as  a 
Law  of  War  by  writers  who  admit  any  limitation.  The  right 
of  putting  to  death  all  prisoners  in  cold  blood  and  without 
special  cause  might  as  well  be  pretended  to  be  a  Law  of  War, 
or  the  right  to  use  poisoned  weapons,  or  to  assassinate.  I 
think  the  Emperor  will  not  recognize  the  right  of  emancipa- 
tion as  legitimate  warfare,  and  am  persuaded  you  will  present 


*The  italics  are  in  the  original. 

*  Letter  of  instruction  by  John  Quincy  Adams  to  Henry  Middleton, 
United  States  Minister  at  St.  Petersburg,  July  5,  1820:  U.  S.  Ministers' 
Instructions  (MSS.,  Dept.  of  State),  Vol.  9,  pp.  18  et  seq.  In  W.  C. 
Ford's  edition  of  the  Writings  of  John  Quincy  Adams  (VII,  46-52)  this 
letter  is  printed  in  part,  but  the  whole  section  concerning  the  carrj'ing 
away  of  slaves  is  omitted. 


STEPS  TOWARD  EMANCIPATION         347 

the  argument  against  it,  in  all  its  force,   and  yet  without 
prolixity.^ 

The  American  contention  was  borne  out  in  the  settle- 
ment of  this  matter;  and,  since  this  was  the  chief  in- 
stance in  which  the  belligerent  right  of  emancipation 
was  discussed  as  it  affected  the  United  States,  it  is 
correct  to  think  of  Adams'  statements  as  expressing  the 
official  American  doctrine  on  the  subject  up  to  the  time 
of  the  Civil  War.  It  may  be  added  that  the  British 
in  this  controversy  did  not  seek  to  justify  emancipa- 
tion under  the  laws  of  war,  but  merely  argued  for  a 
narrow  construction  of  the  wording  of  the  treaty  as  to 
the  slaves  which  were  to  be  restored,  and  that  the  de- 
cision of  the  arbitrator  was  restricted  to  a  question  of 
grammar. 

In  spite  of  this  official  statement  of  Adams,  the  bel- 
ligerent right  of  emancipation  as  a  matter  of  interna- 
tional law  was  frequently  asserted  during  the  Civil  War, 
as  for  instance  by  Representative  Sedgwick  of  New 
York,  who  said  in  debate:  "The  law  of  nations  clearly 
sanctions  the  emancipation  of  the  enemy's  slaves  by 
military  force  and  authority.  It  is  an  understood  and 
received  doctrine."  ^  Disagreement  as  to  what  the  "laws 
of  war"  permit  is  a  common  thing,  and  it  is  not  re- 
markable that  many  who  considered  emancipation  an 
expedient  measure  justified  it  on  this  ground.^ 

*U.  S.  Ministers'  Instructions  (MSS.,  Dept.  of  State),  Vol.  9,  p.  57; 
W.  C.  Ford,  Writings  oj  J.  Q.  Adams,  VII,  83.  An  interesting  com- 
mentary on  this  whole  subject  i.s  to  be  found  in  Henry  Wheaton, 
Elements  of  International  Law  (ed.  by  W.  B.  Lawrence,  Boston,  1863), 
p.  495,  note  167,  p.  611,  note  189. 

'  Cong.  Globe,  Jan.  30,  1863,  37  Cong.,  3  scss.,  p.  629. 

*  A  careful  reading  of  Vattel,  Wheaton  and  Halleck,  who  were  per- 
haps the  three  authorities  on  international  law  most  frequently  cited 
at  the  time  of  the  Civil  War,  fails  to  reveal  any  sanction  of  the  bel- 
ligerent right  of  emancipation.     None  of  the  three  gives  any  specific 


348   THE  CONSTITUTION  UNDER  LINCOLN 

There  were,  however,  other  grounds,  besides  the  "laws 
of  war,"  on  which  the  war  power  over  slavery  was 
asserted.  It  was  urged  that  Congress  had  the  power 
to  legislate  against  slavery  in  States  engaged  in  insur- 
rection. Whiting,  Solicitor  of  the  War  Department, 
declared:  "Whenever,  in  the  judgment  of  Congress,  the 
'common  defense'  and  'public  welfare,'  in  time  of  war, 
require  the  removal  of  the  condition  of  slavery,  it  is 
within  the  scope  of  its  constitutional  authority  to  pass 
laws  for  that  purpose."  ^  American  constitutional  law- 
yers do  not,  in  general,  cite  the  phraseology  of  the  pre- 
amble as  equivalent  to  a  grant  of  power  to  Congress; 
but  it  must  be  remembered  that  much  of  the  argument 
of  the  time  was  of  this  loose,  unscientific,  sort.  Whiting 
continued  by  declaring  that  the  treaty-making  power 
may  abolish  slavery.  "A  clause  in  any  treaty  abolish- 
ing slavery  would,  ipso  facto,  become  the  supreme  law 
of  the  land,  and  there  is  no  power  whatever  that  could 
interfere  with  or  prevent  its  operation."  ^°  By  this 
reasoning,  the  Government  may  do  any  unconstitutional 
thing,  so  long  as  it  embodies  such  action  in  a  treaty! 

In  his  further  discussion  of  the  subject  Whiting  as- 
serted that  Congress  could  abolish  slavery  in  the  States 
under  the  law  of  eminent  domain  (taking  property  for 
a  public  use  or  purpose) ;  ^^  and  that  Congress  could 

treatment  of  the  subject,  but  they  all  emphasize  the  respect  paid  to 
private  property.  (Vattel,  The  Law  of  Nations,  ed.  bj--  J.  Chitty 
[Philadelphia,  T.  and  J.  W.  Johnson,  1S44],  361-370;  Henry  Wheaton, 
Elements  of  International  Law,  cd.  by  W.  B.  Lawrence  [Boston,  1863], 
p.  597;  H.  W.  Halleck,  International  Law  [New  York,  1861],  p.  456.) 

'W.  Whiting,  War  Powers  under  the  Constitution  (Boston,  1871), 
28 

"/bid.,  p.  135. 

^Ibid.,  Ch.  i.  To  base  emancipation  upon  the  right  of  eminent 
domain  would  require  compensation  for  the  slaves  so  taken.  The 
committee  on  war  claims  of  the  House  of  Representatives  declared  in 
1874  that  emancipation  was  "not  a  taking  for  public  use,"  and  they 
held  that  no  basis  for  compensation  existed  on  this  ground.  {House 
Report  No.  2G2,  43  Cong.,  1  sess.,  p.  53,  n.  109.) 


STEPS  TOWARD  EMANCIPATION         349 

emancipate  to  secure  "domestic  tranquillity,"  to  "sup- 
press insurrection,"  or  to  maintain  a  "republican  form 
of  government."  The  fugitive  slave  clause  he  regarded 
as  a  prohibition  upon  the  States;  and,  since  there  was 
a  prohibition  upon  Congress  in  connection  with  the  slave 
trade,  the  omission  of  any  prohibition  regarding  slavery 
itself  convinced  him  that  the  framers  designed  that  Con- 
gress should  control  slavery. 

"Laws  passed  for  that  purpose,"  he  said,  "in  good 
faith,  against  belhgerent  subjects,  not  being  within  any 
express  prohibition  of  the  Constitution,  cannot  lawfully 
be  declared  void  by  any  department  of  government."  ^^ 
Such  a  statement,  of  course,  ignores  the  whole  funda- 
mental principle  of  delegated  powers.  The  powers  of 
Congress  depend  not  upon  absence  of  prohibition,  but 
upon  either  express  or  implied  grant.  Such  defective 
reasoning,  however,  runs  through  the  whole  of  Whiting's 
treatment  of  the  subject. 

In  the  debates  concerning  the  slavery  question  the 
constitutional  arguments  of  the  Congressmen  and  Sena- 
tors varied  according  to  the  policies  which  they  urged. 
Some  radicals,  like  Thaddeus  Stevens,  proposed  to  take 
the  action  whether  constitutional  or  not;  while  others, 
like  Trumbull,  asserted  that  the  Constitution  conferred 
this  as  well  as  every  other  power  "necessary  for  the 
suppression  of  the  rebellion."  ^^  Still  others  adopted 
Sumner's  formula  of  "State  suicide"  and  declared  that 
the  States,  by  seceding,  had  forfeited  their  Statehood 
and  reverted  to  a  territorial  status  under  national  con- 
trol. This  State-suicide  principle  of  Sumner,  it  should 
be  noted,  offered  no  basis  for  nation-wide  action  against 
slavery,  but  only  for  abolition  within  the  seceded  States. 

Of  course  to   those  who   considered   that  war  gave 

P Whiting,  War  Powers,  132.  "Ann.  Cyc,  1862,  p.  282. 


350   THE  CONSTITUTION  UNDER  LINCOLN 

the  right  to  do  illegal  things,  constitutional  difficulties 
concerning  slavery  offered  no  embarrassment.  Quoting 
the  maxim  "inter  arma  silent  leges,"  they  could  say  with 
Sumner:  ".  .  .  the  Constitution  itself  is  only  a  higher 
law;  nor  can  it  claim  to  speak  in  time  of  war,  .  .  .  more 
than  any  other  law."  ^* 

Conservatives  in  Congress  in  denying  the  war  power 
of  Congress  over  slavery  usually  based  their  objections 
on  the  well  understood  principle  that  the  Constitution 
made  slavery  within  the  States  a  State  matter.  Speak- 
ing of  the  emancipating  features  of  the  confiscation  bill 
of  1862,  Senator  Garrett  Davis  of  Kentucky  said:  "Con- 
gress has  neither  the  expressly  delegated  nor  implied 
power  to  liberate  these  slaves."  "On  the  pretext  of  in- 
voking assistance  to  execute  an  express  power,  Congress 
cannot  assume  a  greater  and  more  extensive  one,  par- 
ticularly one  so  formidable  as  to  enable  it  ...  to  break 
down  the  great  principle  of  our  complicated  system — 
that  all  the  internal  affairs  of  the  States  are  exclusively 
under  their  own  governments."  ^^  In  like  vein  Senator 
Carlile  of  Virginia  said:  "The  slaves  are  to  be  emanci- 
pated in  violation  of  the  Constitution.  .  .  .  The  want  of 
power  in  Congress  to  interfere  with  slavery  in  the  States 
where  it  exists  has  always  heretofore  been  admitted;  the 
most  ultra  abolitionists  admit  that  Congress  cannot  inter- 
fere with  slavery  in  the  States,  and  because  this  is  so,  they 
denounce  the  Constitution  as  a  covenant  with  death  and 
a  league  with  hell."  ^^ 

It  is  of  interest  to  notice  that  the  war  did  not  swerve 
President  Lincoln  from  the  view  that  he  had  previously 
expressed  (in  the  debate  with  Douglas  and  elsewhere) 
that  Congress  had  no  constitutional  power  to  overthrow 

>*Cong.  Globe.   Jan.  27,  1862,  37  Cong.,  2  scss.,  p.  2964. 

"Ibid.,   p.  1762. 

"Ann.  Cyc,  1862,  p.  355. 


STEPS  TOWARD  EMANCIPATION         351 

slavery  in  the  States.^^  In  his  pubhc  pronouncement 
concerning  the  Wade-Davis  bill  of  1864,  of  which  he 
disapproved  because  of  its  drastic  process  of  ''reconstruc- 
tion," Lincoln  said:  "1  am  .  .  .  unprepared  ...  to  de- 
clare a  constitutional  competency  in  Congress  to  abolish 
slavery  in  [the]  States."  ^^  He  added  that  he  hoped  the 
object  would  be  achieved  by  constitutional  amend- 
ment.^*^ 

n 

We  must  now^  examine  some  of  the  earlier  measures 
of  interference  with  slavery  which  the  war  situation  pro- 
duced. In  the  first  stages  of  the  war  the  administra- 
tion was  committed  to  the  policy  of  non-interference  in 
this  field. ^'^  Lincoln's  disclaimer  of  any  intention  to 
interfere  with  slavery  in  the  States,  previously  made  on 
various  occasions,  was  repeated  in  the  inaugural  address 
of  1861.21 


"  In  conversation  with  Senator  Browning  of  Illinois,  Lincoln  ex- 
pressed his  conviction  that  Congress  had  no  power  over  slavery  in  the 
States.     (MS.  Diary-  of  Orville  H.  Browning,  July  1,  1862.) 

"  Section  12  of  the  Wade-Davis  reconstruction  bill,  which  passed  Con- 
gress in  July,  1864,  but  was  not  signed  by  the  President,  provided  for 
the  emancipation  of  the  slaves  of  the  "rebel"  States,  and  their  posterity. 
{Cong.  Olobe,  38  Cong.,  1  sess.,  p.  3449.)  For  Lincoln's  view,  see  his 
"proclamation"  concerning  the  Wade-Davis  bill,  July  8,  1864:  Nicolay 
and  Hay,  Works,  X,  153. 

"Further  questions  closely  related  to  the  belligerent  right  of  emanci- 
pation are  discussed  below,  pp.  373-378. 

*°As  an  indication  of  Lincoln's  conservatism  concerning  slavery  early 
in  the  war  it  is  of  interest  to  notice  that  before  he  issued  his  Emanci- 
pation Proclamation  he  expressed  the  view  that  so  much  of  slavery 
as  should  remain  after  the  war  would  be  in  the  same  state  as  before 
the  war.     (MS.  Diary  of  Orville  H.  Browning,  July  1,  1862.) 

"Lincoln's  views  regarding  slavery  cannot  be  dealt  with  at  length 
here.  He  was  not  an  "abolitionist."  He  did  not  favor  the  repeal  of  the 
fugitive  slave  law;  he  did  not  oppose  the  admission  of  slave  States, 
for  he  felt  that  the  States  should  make  such  constitutions  as  their 
people  might  see  fit;  he  did  not,  as  senatorial  candidate  in  1858,  "stand 
pledged"  to  abohtion  of  the  slave  trade  between  the  States.    He  did 


352   THE  CONSTITUTION  UNDER  LINCOLN 

Congress  uttered  a  similar  disclaimer  when  it  adopted, 
almost  without  dissent,  the  Crittenden  resolution  of 
July  22,  1861,  which  declared  that  "this  war  is  not  waged 
...  in  any  spirit  of  oppression,  or  for  any  purpose  of 
conquest  or  subjugation,  or  ...  of  overthrowing  or  in- 
terfering with  the  rights  or  established  institutions  of 
[the]  -^  States,  but  to  defend  and  maintain  the  su- 
premacy of  the  Constitution,  and  to  preserve  the  L^nion 
with  all  the  .  .  .  rights  of  the  several  States  unim- 
paired." -^ 

The  scope  of  this  book  does  not  include  a  discussion 
of  the  reasons  why  this  policy  of  non-interference  was 
abandoned  for  one  of  active  emancipation.  There  were 
enough  factors  which  contributed  to  this  result  with- 
out supposing  any  la<;k  of  good  faith  on  the  part  of 
the  Government.  It  is  sufficient  to  recall  that  Con- 
gress, and  to  a  certain  extent  the  executive,  became  in- 
creasingly   radical    under    the    influence    of    the    "war 

not  consider  that  Congress  had  any  right  to  interfere  with  slaverj'  in 
the  States  where  it  existed.  He  thought  Congress  had  the  right  to 
abolish  slavery  in  the  District  of  Columbia,  but  he  favored  such 
abolition  only  if  gradual  and  accompanied  by  compensation  as  well 
as  a  referendum  to  obtain  an  expression  of  the  sentiment  of  the  people. 
He  regarded  slavery  as  an  evil ;  but  considered  that,  as  it  was  in 
process  of  extinction,  it  was  sufficient  to  look  forward  to  its  peaceable 
disappearance.  A  careful  reading  of  all  of  Lincoln's  utterances  on  the 
subject  shows  that  his  "house-divided-against-itself"  speech  cannot  fairly 
be  interpreted  as  a  threat  of  interference  with  slavery  in  the  South. 
When  it  came  to  extending  slavery,  Lincoln  felt  that  this  should  be 
resisted;  and  he  considered  it  the  right  and  duty  of  Congress  to  pro- 
hibit slavery  in  the  territories.  The  Dred  Scott  dictum  that  Congress 
had  no  such  right  he  refused  to  accept;  and  he  looked  forward  to  the 
time  when  the  reverse  of  this  doctrine  would  be  approved  by  the  Su- 
preme Court  itself.  Such  were,  in  the  main,  Lincoln's  views  at  the 
time  when  he  became  President.  ("The  Lincoln-Douglas  Debates" 
[Illinois  Historical  Collections,  Vol.  HI],  passim,  especially  pp.  150- 
152;  Nicolay  and  Hay,  Works,  Vols.  Ill,  IV,  V,  especially  III,  273 
et  seq.) 

"The  wording  in  the  resolution  is  "those  States,"  referring  to  the 
States  in  "insurrection." 

"  Cong.  Globe,  July  22,  1861,  37  Cong.,  1  scss.,  p.  222. 


STEPS  TOWARD  EMANCIPATION         353 

mind";  that  the  purpose  of  the  war  widened  as  the 
months  of  desperate  fighting  passed;  ^^  that  the  for- 
eign situation  seemed  to  call  for  a  more  definite  declara- 
tion concerning  slavery;  and  that,  in  order  to  deal  with 
various  practical  phases  of  the  slavery  problem  as  they 
came  up,  the  Government  found  itself  forced  either  to 
take  some  steps  toward  emancipation  or  to  become  both 
its  own  enemy  and  an  active  promoter  of  slavery. 
Lincoln's  references  to  non-interference  with  slavery  in 
his  first  inaugural  are  not  to  be  interpreted  as  a  pre- 
diction of  governmental  policy  in  the  event  of  civil 
war,  but  as  a  pledge  offered  in  the  hope  of  keeping  the 
slave  States  in  the  Union.  It  is  not  the  part  of  states- 
manship to  adhere  stubbornly  to  a  given  policy  after 
all  chances  for  its  success  have  been  lost;  and  as  far 
as  President  Lincoln  was  concerned  the  policy  of  non- 
interference was  at  least  given  a  fair  trial  during  the 
first  year  and  a  half  of  the  war.  When  the  Emancipation 
Proclamation  of  September  22,  1862,  indicated  that 
this  former  policy  was  abandoned,  there  was  not  only  a 
hundred-day  warning  given,  but  there  was  also  the 
pledge  of  Federal  pecuniary  aid  to  any  State  that  should 
adopt  emancipation  by  its  own  laws.-^ 


**  Lincoln's  view  as  to  the  inevitable  alteration  of  policy  because  of 
war  was  expressed  in  the  following  words:  "In  the  annual  message 
last  December,  I  thought  fit  to  say,  'The  Union  must  be  preserved;  and 
hence  all  indispensable  means  must  be  employed'.  I  said  this,  not 
hastily,  but  deliberately.  War  has  been  made,  and  continues  to  be, 
an  indispensable  means.  A  practical  reacknowledgment  of  the  national 
authority  would  render  war  unnecessary',  and  it  would  at  once  cease. 
If,  however,  resistance  continues,  the  war  must  also  continue;  and  it  i3 
impossible  to  foresee  all  the  incidents  which  may  attend  and  all  the 
ruin  which  may  follow  it.  Such  as  may  seem  indispensable,  or  may 
obviously  promise  great  efficiency  toward  ending  the  struggle,  must,  and 
will,  come."  (Message  of  March  6,  1862:  Nicolay  and  Hay,  Lincoln, 
V,  209.) 

"  "There  was  more  than  a  year  and  a  half  of  trial  to  suppress  the 
rebellion  before  the  proclamation  issued;  the  last  one  hundred  days  of 


354   THE  CONSTITUTION  UNDER  LINCOLN 

The  President  acted  with  decision  when  it  was  a  mat- 
ter of  overruling  generals  who  exceeded  their  military 
authority  by  taking  the  question  of  emancipation  into 
their  hands.  When,  on  August  30,  1861,  General  Fre- 
mont declared  the  confiscation  of  the  property  "of  all 
persons  in  the  State  of  IVIissouri  who  shall  take  up  arms 
against  the  United  States,  or  who  shall  be  directly  proven 
to  have  taken  an  active  part  with  their  enemies  in 
the  field,"  and  declared  their  slaves  free,  President 
Lincoln  ordered  that  the  proclamation  be  so  modified 
as  to  conform  to  the  Confiscation  Act  of  1861,  which 
applied  only  to  slaves  and  other  property  put  to  hostile 
use.^^ 

Similarly,  when  General  Hunter  in  May,  1862,  declared 
that  "slavery  and  martial  law  in  a  free  country  are  alto- 
gether incompatible,"  and  added  that  "the  persons  in  .  .  . 
Georgia,  Florida,  and  South  Carolina  heretofore  held  as 
slaves  are  therefore  declared  forever  free,"  the  President 
gave  pubhc  notice  that  the  order  was  unauthorized  and 
void.^'^  Both  Fremont's  and  Hunter's  orders  were  in 
essence  political;  for,  instead  of  dealing  with  any  specific 
military  problem  concerning  slaves,  they  proclaimed  a 
comprehensive  and  sweeping  policy  of  emancipation  far 
beyond  any  immediate  military  necessity. 

When  it  came,  however,  to  the  question  of  returning 
fugitive  slaves  who  found  their  way  within  the  Union 
lines,  quite  a  different  problem  was  presented.  Just 
after  General  Benjamin  F,  Butler  assumed  control  at 


which  passed  under  an  explicit  notice  that  it  was  coming."  (Lincoln, 
August  26,  1863,  to  Union  men  at  Sitringfield,  Illinois.  Quoted  in 
Rhodes,  History  oj  the  United  States,  IV,  410.  And  see  also  Lincoln's 
letter  to  McClemand,  Jan.  8,  1863:  Nicolay  and  Hay,  Works,  VIII, 
181.) 

"Ibid.,  VI,  353. 

"  Ibid.,  VII,  171. 


STEPS  TOWARD  EMANCIPATION        355 

Fortress  Monroe,  there  came  within  his  lines  three 
slaves,  the  property  of  Colonel  Mallory,  in  command 
of  the  Confederate  force  in  that  region.  Because  he 
needed  workmen  and  because  he  was  "credibly  informed 
that  the  negroes  in  this  neighborhood  are  employed  in 
the  erection  of  batteries  and  other  works  by  the  rebels, 
which  it  would  be  nearly  or  quite  impossible  to  construct 
without  their  labor,"  Butler  decided  to  hold  them  and 
employ  their  services.  In  an  interview  under  flag  of 
truce  with  Major  Carey  of  the  Virginia  troops,  Butler 
stated  his  position  as  follows: 

...  he  [Major  Carey]  desired  to  know  if  I  did  not  feel  my- 
self bound  by  my  constitutional  obligations  to  deliver  up 
fugitives  under  the  Fugitive  Slave  Act.  To  this  I  replied  that 
the  Fugitive  Slave  Act  did  not  affect  a  foreign  country,  which 
Virginia  claimed  to  be,  and  that  she  must  reckon  it  one  of  the 
infelicities  of  her  position  that,  in  so  far  at  least,  she  was 
taken  at  her  word.^^ 

It  was  in  these  words  that  General  Butler  reported 
the  matter  to  General  Scott  at  Washington,  and  in  this 
report  he  said  nothing  about  having  referred  to  the 
negroes  as  ''contraband  of  war."  Both  Butler  and  Major 
Carey,  however,  have  testified  that  this  phrase  was  used 
by  Butler  in  the  interview.  Referring  to  this  famous 
phrase  in  later  years,  Butler  said:  "as  a  lawyer  I  was 
never  very  proud  of  it,  but  as  an  executive  officer  I  was 
very  much  comforted  with  it  as  a  means  of  doing  my 
duty."  29 

The  problem  involved  here  was  not  that  of  "contra- 


"  Private  and  Official  Correspondence  oj  General  Benjamin  F.  Butler, 
I,  104. 

"  John  Hay  refused  to  credit  Butler  with  authorship  of  the  word 
"contraband"  as  apphed  to  negroes  in  hostile  service,  but  Butler,  reply- 
ing vigorously  in  his  autobiography,  said:    "If  he  had  put  the  question 


356  THE  CONSTITUTION  UNDER  LINCOLN 

band"  in  the  strict  sense,  but  the  problem  of  dealing 
with  fugitive  slaves,  belonging  to  "rebel"  owners,  and 
finding  their  way  into  the  Union  lines.  In  the  early 
part  of  the  war,  some  of  the  generals  adopted  Butler's 
course;  while  others,  as  for  instance  Halleck  in  Mis- 
souri and  General  Williams  in  Louisiana,  refused  to 
receive  such  fugitives  into  their  lines.^°  The  matter 
was  finally  settled  by  Congress.  On  March  13,  1862, 
Congress  enacted  an  "additional  article  of  war"  prohibit- 
ing persons  in  the  military  or  naval  service  "from  employ- 
ing any  of  the  forces  ...  for  the  purpose  of  returning 
*^  fugitives  from  service  or  labor,  who  may  have  escaped."  ^^ 
A  further  step  was  taken  on  July  17,  1862,  when 
Congress  enacted  that  no  slave  escaping  into  any  State 
from  another  State  should  be  delivered  up  except  for 
sy  crime,  unless  to  a  loyal  owner.  Slaves  of  "rebel"  own- 
ers coming  into  the  Union  lines  were  by  this  act  declared 
free.^2 

This  fugitive  slave  question  ofi"ers  an  excellent  ex- 
ample of  the  manner  in  which  the  unavoidable  inci- 
dents of  a  war  over  a  vastly  extended  front  with  a 
slaveholding  power  inevitably  forced  upon  the  Govern- 
ment the  question  of  emancipation.  As  to  the  opera- 
tion of  the  Federal  fugitive  slave  law,  it  is  sufiicient 
to  say  that  the  state  of  war  made  that  law  inapplicable 
as   between    the   United   States   and    the    Confederate 


to  me  I  should  have  answered:  'A  poor  thing,  sir,  but  my  own'.  If 
he  had  inquired  of  Major  Carey,  that  gentleman  would  have  answered 
that  'contraband'  was  the  ground  upon  which  I  refused  to  release  Mal- 
lory's  slaves."  To  confirm  this,  Butler  produced  a  letter  from  Major 
Carey  written  in  1891.  (Butler's  Book  [Autobiography  and  Personal 
Reminiscences  of  Major  General  Benj.  F.  Butler],  Ch.  vi;  Nicolay  and 
Hay,  Lincoln,  IV,  Ch.  xxii.) 

"Ann.  Cyc,  1862,  p.  754. 

"  U.  S.  Slat,  at  Large,  XII,  354. 

*'Ibid.,  p.  589. 


STEPS  TOWARD  EMANCIPATION         357 

States;  while  loyal  slave  owners  within  such  Union 
States  as  Kentucky  and  Missouri  were  permitted  to  re- 
cover their  slaves  until  late  in  the  war,  when  the  fugi- 
tive slave  acts  were  repealed.^^ 


Ill 

Another  form  in  which  the  emancipation  question  pre- 
sented itself  was  in  connection  with  the  subject  of  con- 
fiscation. The  first  Confiscation  Act,  passed  on  August 
6,  1861,  provided  that  "whenever  .  .  .  any  person 
claimed  to  be  held  to  labor  or  service  .  .  .  shall  be 
required  or  permitted  ...  to  take  up  arms  against  the 
United  States  or  ...  to  work  ...  in  any  military  or 
naval  service  whatsoever  against  the  Government  and 
lawful  authority  of  the  United  States,  .  .  .  the  person 
to  whom  such  labor  or  service  is  claimed  to  be  due 
shall  forfeit  his  claim  to  such  labor"  ^*  It  is  perhaps  a 
just  criticism  of  this  act  to  say  that  it  should  not  have 
gone  so  far  as  it  did  without  going  farther.  The  act 
did  not  specifically  say  that  such  slaves  should  be  free, 
though  this  was  the  plain  inference;  and  no  provision 
was  made  for  carrying  into  effect  the  forfeiture  of  this 
particular  class  of  property.  The  act  as  it  related  to 
slaves  was  of  little  practical  importance,^^  yet  it  should 
be  noted  as  one  of  the  earlier  steps  which  pointed  toward 
a  fuller  policy  of  emancipation. 

The  emancipating  feature  of  the  second  Confiscation 


"The  act  of  June  28,  1864,  declared  that  the  fugitive  slave  acts  of 
1793  and  1850  "are  hereby  repealed."     {Ibid.,  XIII,  200.) 

**Ibid.,  XII,  319. 

**  Senator  Trumbull,  on  March  29,  1864,  said  of  the  first  Confiscation 
Act:  "That  act  .  .  .  has  not  been  executed.  So  far  as  I  am  advised 
not  a  single  slave  has  been  set  at  liberty  under  it."  {Cong.  Globe,  38 
Cong.,  1  sess.,  p.  1313.) 


v^ 


358  THE  CONSTITUTION  UNDER  LINCOLN 

w^  Act,  that  of  July  17,  1862,  must  now  be  examined.  This 
was,  primarily,  a  treason  act  and  a  confiscation  act.  The 
provisions  concerning  slaves  must  be  considered  in  re- 
lation to  all  the  other  provisions.  The  law  provided 
that  any  one  thereafter  committing  treason  should 
"suffer  death,  and  all  his  slaves,  if  any,  [should]  be 
declared  and  made  free";  or,  at  the  discretion  of  the 
court,  imprisonment  and  fine  might  be  imposed  instead 
of  death,  in  which  case  also  the  slaves  were  to  be  made 
free,  and  the  fine  was  to  be  levied  on  the  property, 
excluding  slaves.  In  its  later  sections  the  law  imposed 
confiscation  upon  all  persons  engaged  in  or  aiding  the 
rebellion,  and  provided  in  some  detail  for  the  condemna- 
tion of  property  by  proceedings  in  rem  in  the  Federal 
district  courts,  as  well  as  for  its  sale  and  the  depositing 
of  the  proceeds  in  the  treasury.  Then,  in  section  nine, 
the  following  provision  was  added: 

And  be  it  further  enacted,  That  all  slaves  of  persons  who 
shall  hereafter  be  engaged  in  rebelUon  against  the  Government 
of  the  United  States,  or  who  shall  in  any  way  give  aid  or 
comfort  thereto,  escaping  from  such  persons  and  taking  refuge 
within  the  lines  of  the  army ;  and  all  slaves  captured  from  such 
persons  or  deserted  by  them  and  coming  into  the  control  of  the 
Government  of  the  United  States;  and  all  slaves  of  such  per- 
sons found  on  or  being  within  any  place  occupied  by  rebel 
forces  and  afterwards  occupied  by  the  forces  of  the  United 
States,  shall  be  deemed  captives'  of  war,  and  shall  be  forever 
free  of  their  servitude,  and  not  again  held  as  slaves.^^ 

/  An    examination   of   the   whole   act   shows   that    the 

emancipation  of  slaves  is  provided  for  separately  from 
the  confiscation  of  property;  and  the  distinction  between 
the  confiscating  and  the  emancipating  features  of  the 
act  is  important.     The  act  does  not  confiscate  slaves 

"  U.  S.  Slat,  at  Large,  XII,  589-592. 


STEPS  TOWARD  EMANCIPATION         359 

as  property.  The  earlier  sections  (which  provide  in 
detail  for  the  condemnation  in  the  Federal  courts  of 
all  the  estate  and  property,  money,  stocks,  credits,  and 
effects  of  the  offender,  for  its  sale  and  the  disposition 
of  the  proceeds)  make  no  reference  to  slaves,  and  the 
provision  regarding  the  "sale"  of  the  "property"  would 
be  inapplicable  to  slaves,  when  freed. 

It  is  therefore  a  puzzling  question  as  to  how,  in  the 
intention  of  Congress,  this  Confiscation  Act  was  to  be 
used  as  a  measure  of  emancipation.  There  are  no  pro- 
visions whatever  for  making  this  emancipation  effective. 
It  was  not  an  act  of  general  emancipation,  but  one  de- 
claring freedom  in  such  a  way  that  certain  facts  would 
have  to  be  shown  in  regard  to  any  individual  slaves  who 
should  claim  freedom  under  it — especially  the  fact  of 
ownership  by  a  particular  person  and  of  the  rebellious 
character  of  that  person.  To  determine  such  facts 
would  be  essentially  a  judicial  function ;  and  it  has  been 
held  by  the  Supreme  Court  that  forfeiture  of  property 
under  the  laws  of  Congress  is  a  question  whose  de- 
cision belongs  to  the  courts.^'^  If  it  had  been  seriously 
contemplated  that  the  courts  were  actually  to  enforce 
the  emancipating  features  of  the  act,  something  would 
presumably  have  been  said  regarding  procedure;  for,  as 
to  the  confiscation  of  property,  the  procedure  was  care- 
fully specified.^^  It  was  provided  that  proceedings  in 
rem  were  to  be  brought,  with  conformity,  as  nearly  as 
possible,  to  admiralty  actions.  Certainly  in  such  an 
unfamiliar  field  as  this  a  definite  provision  as  to  pro- 
cedure was  to  be  expected.  Section  fourteen  of  the 
act,  it  is  true,  declared  that  "the  courts  .  .  .  shall  have 
full  power  to  institute  proceedings,   make  orders  and 

"  Gelston  vs.  Hoyt,  3  Wheaton  246;  Slocum  vs.  Mayberry,  2  Wheaton 
3. 
"Supra,  p.  285. 


360  THE  CONSTITUTION  UNDER  LINCOLN 

decrees,  issue  process,  and  do  all  things  necessary  to 
carry  this  act  into  effect,"  but  this  provision  seems  to 
apply  to  the  clauses  relating  to  confiscation,  for  the  act 
did  not  even  say  that  the  courts  had  any  functions 
whatever  as  regards  slaves.  It  is  a  general  rule,  of 
course,  that  where  a  right  is  guaranteed  by  Federal  law, 
the  Federal  courts  are  available  to  a  suitor  claiming 
such  a  right;  ^^  and  it  might  be  said  that  a  slave  could 
bring  a  civil  action  in  a  Federal  court  to  obtain  free- 
dom, or  possibly,  to  obtain  damages  for  illegal  detention 
in  servitude,  citing  the  Confiscation  Act  as  justification 
for  such  a  suit;  but,  to  mention  only  a  few  of  the 
diflSculties  involved  here,  this  would  have  put  an  onerous 
and  expensive  burden  upon  the  slave;  it  would  have  in- 
volved one-sided  suits  in  which,  under  the  existing  cir- 
cumstances, the  masters  would  not  have  been  heard; 
the  number  of  such  suits  would  have  exceeded  the  ca- 
pacity of  the  courts;  and  such  civil  actions  would  have 
ignored  the  punitive  features  of  a  law  which  imposed 
emancipation  as  a  penalty  for  supporting  the  "rebellion." 
No  court  may  seize  anything  beyond  its  reach  nor  de- 
termine anything  outside  its  jurisdiction.  If  the  courts 
were  to  have  enforced  the  emancipating  clause  of  the 
act,  the  following  steps  would  have  been  necessary: 

1.  The  courts  would  have  had  to  develop  a  procedure 
for  the  purpose,  under  the  doubtful  authority  of  the 
fourteenth  section.  We  have  already  noted  the  diffi- 
culties which  this  would  have  involved. 

2.  Physical  possession  of  the  slaves  would  have  had 
to  be  acquired.  The  law  said  that  all  slaves  of  "rebels" 
taking  refuge  within  the  military  lines,  and  by  certain 

""The  judicial  power  shall  extend  to  all  Cases  .  .  .  arising  under  this 
Constitution,  the  Laws  of  the  United  States,"  etc.  (Constitution  of 
the  United  States,  Art.  Ill,  sec.  2).  See  also  the  Judiciary  Act  of  1789, 
U.  S.  Stat,  at  Large,  I,  85-86. 


STEPS  TOWARD  EMANCIPATION        361 

other  means  coming  within  military  possession,  were 
to  be  deemed  "captives  of  war"  and  to  be  "forever 
free."  The  rather  eccentric  phrase  "captives  of  war" 
in  this  connection  emphasized  the  fact  that  control  of 
those  slaves  was  to  be  obtained  through  military  action, 
though  that  was  not  the  case  concerning  confiscable 
property.  It  is  evident,  however,  that  the  actual  free- 
ing of  the  slaves  by  military  authority  was  not  in- 
tended; and  that  the  determination  of  rebel  ownership 
and  the  issuing  of  decrees  of  freedom  were  in  the  nature 
of  judicial,  rather  than  military,  functions.  Yet  the  law 
did  not  say  that  the  military  authorities  should  turn 
the  slaves  over  to  the  courts.  What  should  be  done 
with  them  was  left  in  doubt.  It  is  true  that  the  Emanci- 
pation Proclamation  of  September  22,  1862,  enjoined 
upon  the  military  officers  the  enforcement  of  the 
emancipating  clause  of  the  second  Confiscation  Act;  but 
this  injunction  was  unaccompanied  by  specific  instruc- 
tions as  to  how  the  clause  was  to  be  enforced,  or  as 
to  the  many  puzzling  questions  that  would  arise  in 
seeking  to  apply  both  the  confiscation  law  and  the  proc- 
lamation. In  response  to  an  inquiry  by  General  Scho- 
field,  Judge  Advocate  General  Holt  gave  the  opinion 
that  military  protection  should  be  given  to  slaves  desig- 
nated as  free  by  the  confiscation  law  of  1862,  and  that 
"certificates"  of  freedom  be  issued  to  such  slaves;  ^'^  but 
this  policy  advised  by  a  law  officer  of  the  War  Depart- 
ment does  not  seem  to  have  been  put  into  practical 
efi'ect.  Neither  the  military  authorities  nor  the  courts 
had  any  clear  understanding  as  to  how  they  were  to 
carry  out  the  confiscation  law  in  its  relation  to  the 
liberation  of  slaves. 

3.  In  the  third  place,  the  courts  would  have  had  to 

*'0.  R.,  Ser.  Ill,  Vol.  3,  p.  525;  Ser.  II,  Vol.  6.  p.  209. 


362  THE  CONSTITUTION  UNDER  LINCOLN 

make  good  their  jurisdiction  in  dealing  with  the  slaves. 
As  to  confiscable  property,  it  was  held  that  jurisdiction 
depended  upon  dtus — i.  e.,  only  such  property  as  was 
found  within  the  boundaries  of  a  particular  district 
court's  jurisdiction  could  be  seized  and  condemned  by 
that  court.  Senator  Trumbull  pointed  out  that  his  Con- 
fiscation Act  did  not  itself  divest  title  to  property,  and 
that  judicial  action  against  the  property*^  located  in 
loyal  States  within  reach  of  the  Federal  courts  (while 
the  "rebels"  themselves  were  out  of  such  reach)  was 
necessary  in  order  to  complete  the  confiscation. ''^ 
Under  such  limitations,  the  use  of  the  courts  under  the 
Confiscation  Act  for  emancipating  slaves  would  have 
been  impracticable. 

4.  Having  developed  a  procedure,  obtained  the  slaves, 
and  established  jurisdiction,  the  courts  would  have  had 
to  determine  the  essential  facts.  Had  they  done  this 
in  the  manner  that  was  adopted  regarding  confiscable 
property,  this  determination  of  facts  (as  to  ownership 
of  the  slave  and  the  "rebel"  character  of  the  owner) 
would  have  been  performed  in  the  owner's  absence  and, 
as  was  the  practice  in  some  cases,  without  giving  even 
his  agent  a  hearing;  for  a  "rebel,"  it  was  said,  has  no 
persona  standi  in  a  Federal  court. ^^ 

5.  Finally,  the  courts  would  have  had  to  issue  some 
decree    of    emancipation    for    particularly    designated 

**  Proceedings  for  confiscation  were  in  rem  against  the  property, 
not  in  personam  against  the  offender.  Yet  the  offender's  guilt  was 
the  basis  of  the  confiscation.  The  Supreme  Court's  decision  that  a 
"rebel"  should  not  be  denied  "standing  in  court"  in  an  action  concern- 
ing his  property  came  after  the  war,  too  late  to  affect  the  for- 
feitures; and  even  this  decision  did  not  overcome  the  difficulty  in- 
volved in  condemning  the  property  on  default  when  the  owner,  as  was 
usual,  did  not  try  to  appear.  All  this  has  been  treated  elsewhere. 
(Supra,  pp.,  307-312.) 

*'Cong.  Globe,  37  Cong.,  2  eess.,  p.  1571. 

** Supra,  p.  310. 


STEPS  TOWARD  EMANCIPATION         363 

slaves.  Some  document  suitable  for  legal  record  would 
have  been  necessary,  divesting  the  title,  as  a  realty  deed 
conveying  a  piece  of  land  or  a  decree  of  condemnation 
and  sale  in  the  case  of  forfeited  goods.  Since  the  act 
itself  did  not  divest  the  title,  the  need  of  such  a  decree 
is  evident.  It  appears  that  the  United  States  courts 
did  not  consider  such  decrees  of  liberation  proper;  and 
there  is  no  instance,  within  the  writer's  knowledge,  of 
any  such  decree  having  been  issued.  In  fact  there  is 
no  evidence  of  the  actual  enforcement  of  the  emanci- 
pating clause  of  the  act."*^ 

On  close  analysis,  therefore,  it  is  hard  to  see  by  what 
process  any  particular  slaves  could  have  legally  estab- 
lished that  freedom  which  the  second  Confiscation  Act 
''declared."  The  emancipating  clause  of  the  act  is  an 
example  of  loose  legislation  which  is  the  more  remark- 
able in  view  of  the  voluminous  debates  which  every 
phase  of  this  closely  contested  bill  called  forth  in  both 
houses. 

IV 

Simultaneously  with  the  second  Confiscation  Act  Con- 
gress passed  another  law  which  involved  emancipation. 
This  was  the  measure  which  conferred  freedom  upon 
slave-soldiers.  The  Militia  Act  of  July  17,  1862,  pro- 
vided that  when  any  slave  belonging  to  an  enemy  of 
the  United  States  should  render  military  service,  he  ^ 
should  be  forever  thereafter  free;  and  his  mother,  wife, 
and  children  (unless  belonging  to  loyal  owners)  should 
be  free.^^     It  would  seem  that  this  act  really  added 

**  Lincoln  said  concerning  the  second  Confiscation  Act :  "I  cannot 
learn  that  that  law  has  caused  a  sinde  slave  to  come  over  to  us." 
(Sept.   13,   1862:     Nicolay  and  Hay,   Works,  VIII,  30.) 

** Section  13  of  the  act  calling  forth  the  militia:  U.  S.  Stat,  at 
Large,  XII,  599. 


364  THE  CONSTITUTION  UNDER  LINCOLN 

nothing  to  the  emancipating  clause  of  the  Confiscation 
Act,  which  declared  all  such  slaves  free  on  the  ground 
of  "rebel"  ownership,  except  that  an  additional  reason 
for  this  freedom  was  now  found  in  military  service;  and, 
as  military  service  is  a  matter  of  record,  it  would  be 
a  useful  basis  of  establishing  freedom  in  the  legal  sense, 
in  case  the  war  should  close  without  any  more  com- 
prehensive measure  of  liberation.  It  was  rather  surpris- 
ing that  this  law  did  not  at  the  same  time  provide  similar 
freedom  for  slave-soldiers  owned  by  loyal  masters,  with 
compensation  to  such  masters,*®  for  it  was  widely  rec- 
ognized that  no  negro  who  had  served  under  the  colors 
should  be  reenslaved. 

It  will  thus  be  seen  that  before  the  issuance  of  the 
Emancipation  Proclamation  in  September,  1862,  Con- 
gress had  provided  manumission  by  various  measures, 
the  provisions  of  which  to  a  certain  extent  overlapped. 
The  liberation  of  slaves  of  "rebel"  ownership  coming 
within  the  Union  lines,  the  liberation  of  slaves  belong- 
ing to  "rebels"  under  the  Confiscation  Act  of  July,  1862, 
and  the  emancipation  of  slave-soldiers  of  "rebel"  owner- 
ship— all  this  had  been  provided  for  by  Congress  before 
the  President  issued  his  famous  edict.  For  these  reasons 
the  comment  has  sometimes  been  made  that  the  freeing 
of  slaves  during  the  war  was  accomplished  by  Con- 
gress rather  than  by  the  President. 

These  measures  of  Congress  struck  at  slavery  as  a 
State  institution.  But  Congress  did  not  stop  here.  In 
the  national  field  also,  where  its  normal  jurisdiction 
applied    (unless    one    should    accept    the    Dred    Scott 

**This  defect  was  cured  in  the  act  of  February  24,  1864,  amending 
the  "act  for  enrolling  and  calling  out  the  national  forces."  The 
twenty-fourth  section  provided  freedom  for  drafted  slaves  belonging 
to  loyal  owners,  with  bounties  to  the  owners.  Compensation  was  also 
made  available  for  loyal  owners  of  colored  volunteers,  and  such  vol- 
unteers were  made  free.     (U.  S.  Slat,  at  Large,  XIII,  11.) 


STEPS  TOWARD  EMANCIPATION         365 

"dictum"  to  the  contrary)  Congress  acted  in  the  inter- 
est of  freedom.  Slavery  in  the  District  of  Columbia 
was  abolished,  with  compensation  to  loyal  owners,  on 
April  16,  1862;  and  emancipation  in  the  territories  (but 
without  compensation)  was  provided  by  act  of  June  19, 
of  the  same  year,*'^ 


Our  attention  must  now  turn  to  that  form  of  emanci- 
pation which  Lincoln  favored  in  preference  to  any  other 
because  it  came  nearest  to  satisfying  his  sense  of  what 
was  statesmanlike,  equitable,  and  legally  sound.  This 
was  gradual  emancipation  by  voluntary  action  of  the 
States  with  Federal  cooperation  and  compensation.  In 
recommending,  on  March  6,  1862,"*^  that  Congress  should 
pass  a  resolution  pledging  financial  aid  for  this  pur- 
pose, the  President  pointed  out  that  the  matter  was 
one  of  perfectly  free  choice  with  the  States;  and  that 
his  proposition  involved  "no  claim  of  a  right  by  Fed- 
eral authority  to  interfere  with  slavery  within  State 
limits,  referring,  as  it  does,  the  absolute  control  of  the 
subject  ...  to  the  State  and  its  people."  Lincoln  was 
too  good  a  lawyer  to  ignore  the  constitutional  limita- 
tions as  to  the  power  of  Congress  over  slavery  in  the 
States,  and  the  legal  importance  of  the  vested  rights 
of  slave  owners  which   called  for  compensation.      On 


"  U.  S.  Stat,  at  Large,  XII,  376,  432,  538,  665.  In  an  able  analysis  of 
the  Dred  Scott  case,  E.  S.  Corvvin  has  shown  that  Taney's  denial  of  con- 
gressional power  to  prohibit  slavery  in  the  territories  was  not  an  "obiter 
dictum,"  but  a  canvassing  afresh  of  the  question  of  jurisdiction.  He 
points  out,  however,  the  irrelevancy  of  Taney's  argument  in  invoking  the 
doctrine  of  "vested  rights"  in  the  interpretation  of  the  "due  process" 
clause,  and  thus  denouncing  the  Missouri  Compromise  as  a  violation  of 
the  Fifth  Amendment.     {Am.  Hist.  Rev.,  XVII,  52-69.) 

*"Cong.  Globe,  37  Cong.,  2  sess.,  p.  11U2. 


l^ 


366  THE  CONSTITUTION  UNDER  LINCOLN 

April  10,  1862,  Congress  passed  the  following  resolu- 
tion,^® in  the  identical  form  proposed  by  the  President. 

Be  it  resolved  .  .  .  That  the  United  States  ought  to  co- 
operate with  any  State  which  may  adopt  gradual  abolishment 
^  of  slavery,  giving  to  such  State  pecuniary  aid,  to  be  used  by 
such  State  in  its  discretion,  to  compensate  for  the  incon- 
veniences, public  and  private,  produced  by  such  a  change  of 
system. 

This  joint  resolution  was  directed  primarily  to  the  border 
States,  but  it  offered  pecuniary  assistance  to  any  State 
that  should  abolish  slavery.  An  unfavorable  reply  to 
the  proposal  was  made  by  a  congressional  delegation 
from  the  border  States,^"  and  the  scheme  was  never 
carried  out.  It  came  very  near,  however,  to  being  put 
to  a  practical  test  in  Missouri.  Even  before  that  State 
had  passed  an  emancipation  law,  both  houses  of  Con- 
gress passed  bills  giving  actual  financial  aid  to  the  State 
for  the  purpose  of  emancipation.  The  bills  disagreed 
in  form,  and  time  was  lacking  in  the  short  session  end- 
ing in  March,  1863,  to  perfect  and  pass  the  same  bill 
through  the  two  houses;  but  the  afl&rmative  action  of 
both  houses  on  the  actual  appropriation  of  money  is 
significant  of  the  serious  purpose  of  Congress  to  fulfill 
the  Federal  side  of  the  proposal.^^ 

Five  months  after  the  initiation  of  the  scheme  for 
compensated  abolition,  the  executive  proclamation  of 
emancipation,  which  we  will  consider  on  a  later  page, 

**  Ibid.,  Appendix,  p.  420. 

''Ann.  Cyc,  1862,  p.  722. 

"  In  the  House  bill  Federal  bonds  to  the  amount  of  ten  million 
dollars  were  provided.  The  Senate  bill  provided  bonds  up  to  twenty 
million  dollars;  but,  if  emancipation  should  not  be  effected  before 
July  4,  1865,  the  amount  to  be  delivered  was  to  be  only  ten  million. 
(Cong.  Globe,  Jan.  6,  1863,  37  Cong.,  3  sess.,  p.  209;  Senate  Journal, 
Feb.  12,  1863,  p.  243.) 


STEPS  TOWARD  EMANCIPATION        367 

was  issued  (September  22,  1862).  The  proclamation, 
however,  did  not  apply  in  the  border  States,  nor  uni- 
versally within  the  Confederate  States;  and  its  issu- 
ance by  no  means  indicated  an  abandonment  of  the 
scheme  for  State  abolition  with  Federal  compensation. 
In  the  September  proclamation  the  President  specifically 
declared  his  intention  to  "recommend  the  adoption  of 
a  practical  measure  tendering  pecuniary  aid"  to  loyal 
slave  States  voluntarily  adopting  immediate  or  gradual 
abolishment.  The  compensation  scheme  was  his  idea 
of  the  proper  method  for  the  permanent  eradication  of 
slavery,  while  the  proclamation  was  a  measure  of  par- 
tial application  whose  legal  effect  after  the  war  he 
regarded  as  doubtful. 

As  a  side  light  on  the  President's  policy  of  making 
compensation  to  slave  owners,  it  is  interesting  to  study 
a  general  order  concerning  the  military  use  of  property 
and  slaves  in  the  Southern  States,  which  he  issued  on 
the  very  day  when  the  Emancipation  Proclamation  was 
broached  in  Cabinet  meeting  (July  22,  1862).  He 
ordered  that  property  be  used  where  necessary  for  mili- 
tary purposes,  but  that  "none  shall  be  destroyed  in 
wantonness  or  malice."  He  further  directed  "that  .  .  . 
commanders  employ  ...  so  many  persons  of  African 
descent  as  can  be  advantageously  used  for  military  or 
naval  purposes,  giving  them  reasonable  wages  for  their 
labor,"  and  ordered  "that,  as  to  both  property  and  per- 
sons of  African  descent,  accounts  shall  be  kept  ...  as 
a  basis  upon  which  compensation  can  be  made  in 
proper  cases."  This  order  was  written  in  Lincoln's  hand- 
writing and  was  issued  as  a  general  order  by  the 
War  Department. ^^  It  is  of  interest  as  showing  how  the 
President,  while  occupied  with  the  subject  of  emancipa- 

"  Stanton  Papers,  VIII,  No.  51769;  O.  R.,  Ser.  Ill,  Vol.  2,  p.  397; 
Nicolay  and  Hay,  Works,  YII,  ,287. 


368  THE  CONSTITUTION  UNDER  LINCOLN 

tion  by  proclamation,  was  at  the  same  time  mindful 
of  the  property  rights  of  slave  owners. 

In  his  annual  message  of  December  1,  1862,  Lincoln 
presented  at  some  length  a  detailed  project  for  com- 
pensated emancipation  which  he  wished  to  have  adopted 
as  articles  amendatory  of  the  Constitution.  These  pro- 
posed amendments  provided  for  the  delivery  of  United 
States  bonds  to  every  State  which  should  abolish  slavery 
before  the  year  1900.  All  slaves  made  free  by  the 
chances  of  war  were  to  be  forever  free,  but  loyal  own- 
ers of  such  slaves  were  to  be  compensated.  The  Presi- 
dent, in  this  message,  argued  elaborately  and  eloquently 
for  the  adoption  of  his  scheme.^^ 

An  examination  of  this  able  message  reveals  much 
concerning  the  legal  phases  of  emancipation  as  viewed 
by  the  President.  He  treated  the  subject  of  the  libera- 
tion of  slaves  as  one  still  to  be  decided,  showing  that 
he  did  not  regard  the  Emancipation  Proclamation  as  a 
settlement  or  solution  of  the  question  in  the  large  sense. 
State  action  was  still  to  be  relied  upon  for  the  legal 
accomplishment  of  emancipation;  and  this  was  in  har- 
mony with  the  statement  which  the  President  is  re- 
ported to  have  made  in  his  interview  with  the  border- 
State  delegation  on  March  10,  1862,  "that  emancipation 
was  a  subject  exclusively  under  the  control  of  the  States, 
and  must  be  adopted  or  rejected  by  each  for  itself; 
that  he  did  not  claim,  nor  had  this  Government  any 
right  to  coerce  them  for  that  purpose."  ^^ 

The  message  shows  further  that  he  considered  com- 
pensation the  correct  procedure;  and  believed  that  such 
compensation  by  the  Federal  Government,  the  expense 
of  which  would  be  borne  by  the  whole  country,  was 


"Nicolay  and  Hay,  Works,  VIII,  93-131. 

"McPhcrson,  Political  History  oj  the  Rebellion,  210  ct  seq. 


STEPS  TOWARD  EMANCIPATION         369 

equitable.  He  would  set  constitutional  discussions  at 
rest  by  writing  his  plan  of  liberation  (even  to  the 
amount  and  interest  rate  of  the  bonds  and  the  terms  of 
their  delivery)  into  the  fundamental  law.  Yet,  though 
he  was  proceeding  by  constitutional  amendment,  his 
method  was  not  to  emancipate  by  purely  national  action; 
for  the  matter  was  still  to  be  left  to  the  States  and 
would  apply  only  in  those  States  which  should  choose 
to  cooperate.  It  was  to  be  voluntary  emancipation  by 
the  States  with  compensation  by  the  nation.  For  even 
so  much  national  action  as  was  involved  in  "coopera- 
tion" with  States  desiring  to  give  freedom  to  their  slaves, 
Lincoln  favored  the  adoption  of  a  constitutional  amend- 
ment, though  this  financial  "cooperation"  is  the  sort 
of  thing  that  Congress  nowadays  regards  as  a  part  of 
an  ordinary  day's  work. 

We  need  not,  of  course,  conclude  that  the  President, 
in  his  own  mind,  doubted  the  constitutionality  of  the 
proposal  for  compensated  emancipation;  though,  as  we 
have  seen,  he  did  doubt  the  constitutional  power  of 
Congress  to  impose  liberation  upon  a  State.  He  said 
in  communicating  his  original  proposal  to  the  border- 
State  delegation  that  his  proposition,  since  it  merely  con- 
templated cooperation  with  States  which  should  vol- 
untarily act,  involved  no  constitutional  difficulty.^^  In 
his  December  message  he  made  no  reference  to  any  de- 
fect in  the  constitutional  power  of  Congress  to  act  as 
he  proposed.  The  plain  inference  is,  not  that  the  Presi- 
dent considered  an  amendment  necessary  to  legalize  his 
project;  but  that  he  wished  the  scruples  of  those  who 
did  think  so  satisfied,  and  also  that  he  wished  so  grave 
and  important  a  matter  to  be  dealt  with  by  a  solemn, 
fundamental,  act. 

"  Nicolay  and  Hay,  Works,  VII,  125-126. 


370  THE  CONSTITUTION  UNDER  LINCOLN 

Since  this  project  for  State  abolition  with  Federal 
aid  was  never  adopted,  we  need  not  dwell  further  upon 
the  many  interesting  questions  which  it  presented.  Per- 
haps its  chief  interest  is  to  be  found  in  the  light  it  throws 
upon  Lincoln's  conser\'atism  and  his  lawyerlike  caution 
in  dealing  with  the  slavery  question  as  a  matter  of  per- 
manent law. 


CHAPTER  XVI 

EMANCIPATION    COMPLETED 

I.   Legal  basis  of  the  Emancipation  Proclamation 
II.   Effect  and  validity  of  the  proclamation 

III.  Legal  confusion  arising  where  Federal  laws  of  emanci- 

pation encountered  slave  codes  in  loyal  States 

IV.  Action  of  the  border  States  concerning  slavery 

V.   The  anti-slavery  amendment:    Controversy  concerning 

such  use  of  the  "amending  power" 
VI.   Legality    of    the    process    by    which    the   Thirteenth 

Amendment  was  ratified 
VII.   Considerations  concerning  the  lack  of  compensation  to 
slaveholders 


Our  attention  will  be  directed  in  this  chapter  to  the 
public  measures  by  which  the  eradication  of  slavery  in 
this  country  was  actually  accomplished.  President 
Lincoln  issued  a  preliminary  proclamation  of  emancipa- 
tion on  September  22,  1862,  from  which  we  may  quote 
the  following  words: 

I,  Abraham  Lincoln,  President  of  the  United  States  .  .  .  , 
and  Commander-in-Chief  of  the  army  and  navy  thereof,  do 
hereby  proclaim  .  .  .  that  hereafter,  as  heretofore,  the  war 
will  be  prosecuted  for  the  object  of  practically  restoring  the 
constitutional  relation  between  the  United  States  and  each  of 
the  States.  ...  [In  the  next  paragraph  the  President  states 
that  he  will  again  recommend  to  Congress  the  adoption  of  a 
practical  measure  giving  pecuniary  aid  to  States  not  in  re- 
bellion which  may  abolish  slavery.] 

That  on  the  first  day  of  January  [1863],  all  persons  held  as 
slaves  within  any  State,  or  designated  part  of  a  State,  the. 

371 


372  THE  CONSTITUTION  UNDER  LINCOLN 

people  whereof  shall  then  be  in  rebellion  against  the  United 
States,  shall  be  then,  thenceforward,  and  forever  free;  and  the 
Executive  Government  of  the  United  States,  including  the 
military  and  naval  authority  thereof,  will  recognize  and  main- 
tain the  freedom  of  such  persons,  and  will  do  no  act  ...  to 
repress  such  persons  ...  in  any  efforts  they  may  make  for 
their  actual  freedom.  [The  proclamation  then  quotes  the  act 
of  Congress  prohibiting  the  use  of  the  military  forces  to  return 
fugitive  slaves,  and  the  emancipating  clauses  of  the  second 
Confiscation  Act,  and  enjoins  the  armed  forces  of  the  United 
States  to  obey  and  enforce  these  enactments.] 

And  the  Executive  will  in  due  time  recommend  that  all 
[loyal]  citizens  .  .  .  shall  (upon  the  restoration  of  the  con- 
stitutional relation  between  the  United  States  and  their  re- 
spective States  and  people,  if  that  relation  shall  have  been 
suspended  or  disturbed)  be  compensated  for  all  losses  by  acts 
of  the  United  States',  including  the  loss  of  slaves.^ 

One  hundred  days  later,  on  January  1,  1863,  the  defini- 
tive proclamation  was  issued.  Beginning  with  a  pre- 
amble referring  to  the  earlier  proclamation  of  warning, 
the  President  continued:  ^ 

Now  therefore  I  ...  by  virtue  of  the  power  in  me  vested 
as  Commander-in-Chief  of  the  Army  and  Navy  ...  in  time 
of  actual  armed  rebellion  .  .  .  ,  and  as  a  fit  and  necessar>' 
war  measure  for  suppressing  said  rebellion,  do  .  .  .  order  and 
designate  .  .  .  the  following  [as  rebellious  districts],  to-wit: 

Arkansas,  Texas,  Louisiana  [except  certain  designated  par- 
ishes], Mississippi,  Alabama,  Florida,  Georgia,  South  Carolina, 
North  Carolina,  and  Virginia  [except  "West  Virginia"  and 
certain  other  designated  portions].^ 

*  Nicolay  and  Hay,  Works,  VIII,  36-41. 
'Ibid.,  pp.  161-164. 

*  The  excepted  portions  of  Virginia,  besides  "the  forty-eight  counties 
designated  as  West  Virginia"  (for  which  the  process  of  separate  state- 
hood had  not  yd  been  completed),  were  "the  counties  of  Berkeley, 
Accomac,  Northampton,  Elizabeth  City,  York,  Princess  Anne,  and 
Norfolk,  including  the  cities  of  Norfolk  and  Portsmouth."  It  should 
be  noted  that  Tennessee  was  omitted  from  the  proclamation. 


EMANCIPATION  COMPLETED  373 

And  ...  I  do  order  and  declare  that  all  persons  held  as 
slaves  within  said  designated  States  and  parts  of  States  are, 
and  henceforward  shall  be,  free;  and  that  the  Executive  Gov- 
ernment of  the  United  States,  including  the  military  and  naval 
authorities  thereof,  will  recognize  and  maintain  the  freedom 
of  said  persons. 

[The  President  then  enjoins  orderly  conduct  upon  freedmen 
and  offers  to  receive  them  into  the  armed  service  for  garrison 
and  naval  duty.] 

And  upon  this  act,  sincerely  believed  to  be  an  act  of  justice, 
warranted  by  the  Constitution  upon  military  necessity,  I  in- 
voke the  considerate  judgment  of  mankind,  and  the  gracious 
favor  of  Almighty  God. 

An  extensive  controversy  was  waged  as  to  the  legal 
basis  for  this  "edict"  of  freedom.  It  was  urged  in 
opposition  that  slavery  was  a  State  affair;  *  that  the 
only  source  of  power  for  the  Federal  Government  was 
the  Constitution,  and  that  under  it  the  Government  had 
no  authority  over  slavery  within  the  States;  that  pre- 
serving the  Constitution,  not  breaking  it,  was  the  pur- 
pose of  the  war;  that  under  international  law  private 
property  on  land  was  exempt  from  seizure;  that 
emancipation  was  especially  discredited  as  a  belligerent 
right;  that  it  amounted  to  the  taking  of  property  with- 
out "due  process  of  law";  and  that  such  action  in  the 
form  of  a  proclamation  was  a  mere  usurpation  of  power 
on  the  part  of  the  executive. 

On  the  affirmative  side  it  was  admitted  that  the  right 
of  emancipation  was  not  specifically  granted  by  the 
Constitution;  but  it  was  urged  that  that  instrument  au- 
thorizes the  Government  to  wage  war,   and  thus  to 

*  Lincoln  admitted  this  as  a  rule  applying  in  peace  times,  and  in  time 
of  war  as  a  limitation  upon  Congress,  but  not  upon  the  executive. 
Rigid  consistency  would,  perhaps,  have  required  him  to  veto  certain 
emancipating  measures  of  Congress  which,  nevertheless,  he  signed. 


374  THE  CONSTITUTION  UNDER  LINCOLN 

exert  war  powers  against  an  enemy.  International  law, 
so  the  argument  ran,  is  at  all  times  an  available  part 
of  our  Government's  legal  resources;  and  in  time  of  war 
the  "usages  of  war"  which  are  a  part  of  international 
law  must  always  be  included  among  the  legitimate 
sources  of  governmental  authority.  During  the  Civil 
War  belligerent  rights  were  declared  by  the  Supreme 
Court  to  belong  to  the  L^nited  States  in  its  dealings 
with  the  secessionist  power;  and  all  the  inhabitants  of 
the  States  in  "insurrection"  were,  in  the  eyes  of  the 
law,  "enemies."  The  seizure  of  an  enemy's  property  is 
a  right  as  well  as  a  necessary  result  of  war,  it  was 
argued;  and,  if  necessary  for  military  purposes,  such 
property  may  be  destroyed.  Those  humane  considera- 
tions which,  in  modern  times,  modify  the  right  of  seiz- 
ure and  limit  it  to  such  property  as  is  useful  in  the  prose- 
cution of  war  are  not  to  be  ignored;  but  emancipation 
is  a  humane  measure,  striking  at  a  kind  of  "property" 
which  modern  nations  have  ceased  to  recognize;  and  the 
military  importance  of  slavery  to  the  enemy  constitutes 
it  a  legitimate  target  against  which  the  right  over  en- 
emy property  may  be  exerted.  As  to  the  President's 
exercise  of  the  power  by  proclamation,  that  was  held 
to  be  justified  by  the  general  rule  that  the  President's 
powers  as  commander-in-chief  include  belligerent  rights 
derived  from  the  usages  of  war,  as,  for  example,  the 
authority  to  proclaim  a  blockade  of  the  enemy's  coast. 
The  proclaiming  of  such  a  blockade,  it  was  urged,  though 
not  specifically  authorized  by  the  Constitution,  is  gen- 
erally conceded  to  be  within  the  President's  war  power; 
and  emancipation  was  claimed  as  an  analogous  right. 

The  right  to  free  an  enemy's  slaves,  it  was  also  argued, 
is  embraced  within  the  law  of  military  occupation.  In 
support  of  this  view  it  was  a  common  thing  to  quote 
certain  well-known  statements  of  John  Quincy  Adams 


EMANCIPATION  COMPLETED  375 

regarding  slavery  and  "martial  law."  ^  We  need  not 
pause  here  to  comment  on  the  lack  of  harmony  between 
these  later  views  of  Adams  as  an  anti-slavery  leader 
and  the  earlier  arguments  which  as  Secretary  of  State 
he  urged  against  the  belligerent  right  of  emancipation. 
Whether  he  regai'ded  these  seemingly  opposite  views  as 
consistent,  or  whether  he  had  changed  his  mind,  is  a 
matter  that  need  not  detain  us;  but  during  the  Civil 
War  he  was  cited  as  a  convincing  authority  by  both 
the  supporters  and  the  opponents  of  military  emancipa- 
tion. In  1842  Adams  argued  that  an  invaded  country 
has  all  its  laws  swept  away  and  is  subjected  to  martial 
law.  When  two  hostile  armies  are  set  in  martial  array, 
the  conamanders  of  both,  he  declared,  have  the  power 
to  emancipate  all  the  slaves  in  the  invaded  territory. 
Citing  an  instance  of  military  abolition  of  slavery  in 
South  America,  he  observed,  "It  was  abolished  by  .  .  . 
military  command  .  .  .  and  its  abolition  continues  to 
be  law  to  this  day.  It  was  abolished  by  the  laws  of 
war,  and  not  by  municipal  enactments."  ^  Military  au- 
thority, said  Adams,  takes  the  place  of  municipal  in- 
stitutions, slavery  among  the  rest.     "From  the  instant 


"C.  F.  Adams,  "John  Quincy  Adams  and  Martial  Law,"  Mass.  Hist. 
Soc.  Proceedings,  second  series,  XV  (1901-1902),  436-478. 

'Ibid.,  p.  442.  It  appears  that  Adams  was  in  error  in  his  use  of 
South  American  examples.  He  evidently  referred  to  the  action  of 
Bolivar  in  1816  in  proclaiming  freedom  to  slaves  in  certain  parts  of 
Venezuela  which  was  at  that  time  united  with  Colombia.  This  action, 
however,  was  but  partial,  and  it  did  not  put  an  end  to  slavery  in  that 
countr>';  for  Bolivar  himself  requested  the  Venezuelan  Congress  to 
abolish  slavery  in  later  years,  and  Codazzi,  the  geographer,  calculated 
that  there  were  49,000  slaves  in  Venezuela  in  1839.  Effectual  abolition 
of  slavery  did  not  come  in  Venezuela  until  1854,  nor  in  New  Granada 
(Colombia)  until  1851.  Thus  when  Adams  spoke  in  1842  of  abolition 
by  military  authority  in  South  America,  slavery  actually  existed  in 
those  countries  to  which  he  was  referring.  (M.  Landaeta  Resales,  La 
Libertad  de  los  Esclavos  en  Venezuela;  W.  S.  Robertson,  History 
of  the  Latin  American  Nations,  366,  409.) 


376   THE  CONSTITUTION  UNDER  LINCOLN 

your  slave  vState  becomes  a  theater  of  war,  servile,  civil 
or  foreign,  the  war  powers  of  Congress  extend  to  inter- 
ference with  slavery  in  every  way." 

An  examination  of  the  context  and  the  historical 
setting  of  these  utterances,  which  were  made  in  debate 
in  the  House  of  Representatives  in  1837  and  1842,  shows 
that  Mr.  Adams  was  contending  primarily  at  this  time 
for  the  right  of  those  opposed  to  slavery  to  present 
petitions  to  Congress;  that  he  objected  to  the  extreme 
wording  of  a  proposed  resolution  to  the  effect  that  Con- 
gress had  no  power  to  interfere  "in  any  way"  with  the 
subject  of  slavery;  and  that,  in  justifying  interference 
with  slavery  in  time  of  war,  he  seems  to  have  had  in 
mind  a  situation  in  which  the  people  of  the  free  States 
W'Ould  be  called  upon  to  aid  in  putting  down  servile 
insurrection  in  the  South,  thus  giving  their  lives  and 
money  for  the  purpose,  as  he  said,  of  keeping  the  blacks 
in  slavery.  Under  these  circumstances,  he  would  con- 
sider the  freeing  of  the  slaves  by  military  power  justi- 
fied; but  such  a  situation  differed  materially  from  that 
which  really  existed  during  the  Civil  War.  It  should 
be  added  that,  in  using  the  expression  "martial  law," 
he  intended  to  refer  to  the  law  of  militaiy  occupation; 
though  his  statements  as  Secretary  of  State,  in  1820, 
certainly  excluded  manumission  of  slaves  as  a  right  of  a 
military  occupant. 

Some  of  the  arguments  justifying  the  proclamation 
were  not  worthy  of  serious  consideration.  It  was  gravely 
argued,  for  instance,  that  the  Constitution  did  not  rec- 
ognize slaves  at  all,  considering  the  negro  in  the  South 
on  the  same  basis  as  the  apprentice.'^    It  was  also  said 

^  It  was  argued  in  the  report  of  the  American  Freedmen's  Inquiry 
Commission,  in  May,  1864,  that,  in  the  section  referring  to  the  ap- 
portionment of  Representatives  and  direct  taxes,  the  words  "other 
persons"  were  used  in  contrast  to  "free  persons"  precisely  in  the  same 


EMANCIPATION  COMPLETED  377 

that  property  in  slaves  was  a  debt,  similar  to  "the  debt 
an  artisan  might  contract,  if  he  gave  .  .  .  his  promis- 
sory note  for  so  many  months'  labor."  ®  It  was  then 
added  that  the  emancipation  of  slaves  was  merely  the 
confiscation  of  debts!  Such  champions  of  the  Presi- 
dent's power  also  argued  that  if,  as  Commander-in-Chief, 
he  should  violate  the  rules  of  war  concerning  the  prop- 
erty of  non-combatants,  it  would  be  "an  offense,  not 
against  the  Constitution,  but  against  international  law." 
"The  legality  of  his  acts"  in  that  case  might  be  "called 
in  question,  not  their  constitutionality."  ^ 

In  considering  the  grounds  on  which  Lincoln  himself 
justified  the  proclamation,  we  must  remember  that  he 
really  favored  emancipation  by  State  action  with  Fed- 
eral compensation  to  the  owners,  but  realized  that  there 
was  no  prospect  of  this  proposal  being  adopted  by  the 
seceded  States.  We  must  remember,  also,  that  prior  to 
the  issuance  of  the  proclamation  he  had  been  "prompt 
and  emphatic  in  denouncing  any  interference  by  the  gen- 
eral Government  with  the  subject."  ^^  On  various  occa- 
sions he  declared  his  conviction  that  Congress  (even  dur- 
ing the  war)  had  no  legal  power  to  strike  at  slavery  in 
the  States.  He  thought,  however,  that  the  executive  had 
powers  which  Congress  did  not  have. 

He  based  his  proclamation  solely  upon  the  "war 
power."  He  issued  it  "by  virtue  of  the  power  in  me 
vested  as  Commander-in-Chief  of  the  Army  and  Navy 

sense  that  the  phrase  "those  bound  to  service  for  a  term  of  years" 
was  so  used.  It  was  then  stated  that  the  Constitution  did  not  recog- 
nize the  negro  as  a  slave  any  more  than  the  apprentice.  (O.  R., 
Ser.  Ill,  Vol.  4,  pp.  345-346.) 

'Ibid.,  p.  349. 

'Ibid.,  p.  352. 

"^  Diary  of  Gideon  Welles,  I,  70-71.  (July  13,  1862.)  Welles  adds: 
"This  was,  I  think,  the  sentimenT  of  every  member  of  the  Cabinet, 
all  of  whom,  including  the  President,  considered  it  [slavery]  a  local, 
domestic   question." 


378   THE  CONSTITUTION  UNDER  LINCOLN 

.  .  .  and  as  a  fit  and  necessary  war  measure."  He  char- 
acterized it  as  an  act  "warranted  by  the  Constitution 
upon  military  necessity."  ^^  "As  Commander-in-Chief," 
he  once  said,  rather  loosely,  'T  suppose  I  have  a  right  to 
take  any  measure  which  may  best  subdue  the  enemy."  ^- 
Again  he  said,  'T  think  the  Constitution  invests  its  Com- 
mander-in-Chief with  the  law  of  war  in  time  of  war," 
and  he  added  that  the  law  of  war  gives  the  right  to  take 
property  "whenever  taking  it  helps  us  or  hurts  the 
enemy."  ^^  In  fact,  he  considered  military  necessity  the 
only  just  basis  for  the  proclamation,^*  and  he  even  justi- 
fied it  on  the  ground  that  the  war  at  times  necessi- 
tated things  that  were  normally  "unconstitutional."  "I 
felt  that  measures  otherwise  unconstitutional,"  he  said, 
"might  become  lawful  by  becoming  indispensable  to  the 
preserv^ation  of  the  Constitution  through  the  presenta- 
tion of  the  nation."  ^^  In  these  extracts  we  have  the  gist 
of  Lincoln's  views  on  the  subject.  It  is  perhaps  sufficient 
to  say  that  he  considered  liberation  of  the  enemy's  slaves 
an  appropriate  and  necessary  military  measure  coming 
within  the  laws  of  war. 


n 

Having  observ^ed  the  basis  upon  which  the  proclama- 
tion rested,  we  must  now  inquire  as  to  its  legal  effect  and 
validity.  In  this  connection  the  limitations  within  the 
proclamation  itself  should  be  carefully  noted.     Those 


"The  words  in  italics  were,  as  Rhodes  points  out,  inserted  by  Lin- 
coln in  a  passage  suggested  by  Chase.  (Rhodes,  History  oj  the 
United  States,  IV,  213,  n.) 

"  Nicolay  and  Hay,  Works,  VIII,  32. 

"/bid.,  IX,  98. 

""The  .  .  .  proclamation  has  no  constitutional  or  legal  justification, 
except  as  a  military  measure,"  said  Lincoln.    Ibid.,  IX,  109.) 

^'Ibid.,  X,  66. 


EMANCIPATION  COMPLETED  379 

portions  of  Confederate  territory  which  were  within  the 
control  of  the  military  forces  of  the  Union  were,  in 
general,  excepted  from  the  terms  of  the  proclamation. 
These  exceptions  were  made,  as  President  Lincoln  said, 
because  "military  necessity"  did  not  require  the  applica- 
tion of  the  proclamation  in  these  regions.^^  Largely  for 
this  reason,  the  proclamation  has  been  frequently  de- 
scribed as  a  measure  having  little  or  no  effect.  "Immedi- 
ate practical  effect  it  has  none,"  said  the  New  York 
World,  "the  slaves  remaining  in  .  .  .  the  same  condition 
as  before."  "So  long  ...  as  the  present  political  and 
military  status  continues,  the  freedom  declared  by  this 
proclamation  is  a  dormant,  not  an  actual  freedom.  .  .  . 
The  proclamation  is  issued  as  a  war  measure.  .  .  .  But 
that  cannot  be  a  means  of  military  success  which  pre- 
supposes this  same  military  success  as  the  condition  of  its 
existence."  ^^  "We  show  our  sympathy  with  slavery," 
Seward  is  reported  to  have  said,  "by  emancipating  slaves 
where  we  cannot  reach  them,  and  holding  them  in  bond- 
age where  we  can  set  them  free."  ^^  "The  proclamation 
applied  only  to  States  and  parts  of  States  under  rebel 
control.  It  did  not  emancipate  any  slaves  within  the 
emancipator's  reach,"  is  the  comment  of  Horace  White.^^ 
The  British  statesman,  Earl  Russell,  wrote  on  January 
17,  1863:  "The  Proclamation  of  the  President  of  the 
L'nited  States  .  .  .  appears  to  be  of  a  very  strange 
nature.  It  professes  to  emancipate  all  slaves  in  places 
where  the  United  States  authorities  cannot  exercise  any 
jurisdiction  .  .  .  but  it  does  not  decree  emancipation 
...  in  any  States,  or  parts  of  States,  occupied  by  fed- 


""Ibid.,  IX,  109. 

"  Editorial,  New  York  World,  Jan.  3,  1863. 

"  Don  Piatt,  Memoirs  of  Men  Who  Saved  the  Union,  150.     (Cited 
in  Horace  White,  Life  of  Lyman  Trumbull,  222.) 
"Horace  White,  Life  of  Lyman  Trumbull,  222. 


380  THE  CONSTITUTION  UNDER  LINCOLN 

eral  troops  .  .  .  and  where,  therefore,  emancipation  .  .  . 
might  have  been  carried  into  effect.  .  .  .  The  proclama- 
tion .  .  .  makes  slavery  at  once  legal  and  illegal.  .  .  . 
There  seems  to  be  no  declaration  of  a  principle  adverse 
to  slavery  in  this  proclamation.  It  is  a  measure  of  war, 
and  a  measure  of  war  of  a  very  questionable  kind."  ^^ 

The  Emancipation  Proclamation  is  commonly  re- 
garded as  a  measure  which  marked  a  distinct  change 
in  the  purpose  of  the  war,  so  that  from  the  time  of  its 
issuance  the  war  was  pursued  with  the  object  of  over- 
throwing slavery.  There  is  truth  in  this  view,  and  one 
does  note  after  the  proclamation  an  increasing  determi- 
nation on  the  part  of  the  Government  to  conduct  the  con- 
flict as  a  war  against  slavery;  but  if  the  seceded  States 
had  done  all  that  Lincoln  asked  and  returned  to  the 
Union  in  response  to  his  preliminary  proclamation  of 
September,  1862,  there  was  nothing  in  the  proclamation 
y  to  prevent  the  war  from  ending  with  slavery  still  pre- 
served. Preservation  of  slavery  in  non-rebellious  regions 
seemed  to  be  implied  in  the  proclamation.  Russell  made 
a  true  observation  when  he  said  that  Lincoln's  procla- 
mation contained  "no  declaration  of  a  principle  adverse 
to  slavery." 

Comments  by  Lincoln's  critics  on  the  futility  of  the 
proclamation  were  common  enough;  but  we  read  with 
wonder  the  following  language  of  Lincoln  himself, 
uttered  after  the  proclamation  had  been  presented  in 
Cabinet  and  decided  upon  as  a  policy  of  the  administra- 
tion: "What  good  would  a  proclamation  of  emancipa- 
tion from  me  do?"  wrote  the  President  to  an  anti-slavery 
delegation.  "I  do  not  want  to  issue  a  document  that 
the  whole  world  will  see  must  necessarily  be  inoperative, 

'"Note  of  Russell  to  Lyons,  January  17,  1863:  Henry  Wheaton, 
Elements  oj  International  Law,  ed.  by  W.  B.  Lawrence  (Boston,  1863), 
supplement,  p.  37. 


EMANCIPATION  COMPLETED  381 

like  the  Pope's  bull  against  the  comet.  Would  my  word 
free  the  slaves,  when  I  cannot  even  enforce  the  Consti- 
tution in  the  rebel  States?  Is  there  a  single  court,  or 
magistrate,  or  individual  that  would  be  influenced  by 
it  there?"  21 

Of  course  the  history  of  the  war  amply  proves  that,  as 
a  practical  measure,  the  proclamation  was  more  than  a 
"bull  against  the  comet."  One  needs  only  to  talk  with 
a  veteran  of  the  war  to  learn  how  the  negroes  hailed  the 
proclamation  as  their  liberation  from  generations  of 
bondage,  how  they  flocked  to  the  armies  in  embarrass- 
ing numbers,  how  thousands  of  them  accompanied 
Sherman  to  the  sea.-^  The  records  of  the  war  give 
ample  evidence  of  the  actual  carrying  out  of  the 
proclamation.  As  a  way  of  weakening  the  enemy,  slaves 
were  encouraged  to  come  within  the  Union  lines  and 
their  treatment  was  a  matter  receiving  careful  thought. 
Thousands  were  used  as  soldiers;  many  were  put  to  labor 
for  wages,  either  for  the  Government  or  for  loyal  em- 
ployers; the  women,  children,  and  infirm  became  wards 
of  the  nation.  Camps  for  freed  negroes  were  established 
as  a  temporary  expedient;  and,  to  cope  with  the  larger 
aspects  of  the  new  problem,  the  generals  organized  spe- 
cially created  departments  of  negro  affairs,  which  under- 
took the  manifold  activities  that  later  fell  to  the  Freed- 
men's  Bureau.-^  It  is  instructive  to  read  on  this  subject 
the  comprehensive  orders  of  General  Butler  issued  in 
December,  1863.-'*  He  detailed  one  of  his  colonels  as  a 
"general  superintendent  of  negro  affairs,"  with  head- 
quarters at  Fortress  Monroe,  and  under  him  were  ap- 


"■  Nicolay  and  Hay,  Works,  VIII,  30. 

"Rhodes,  History  of  United  States,  V,  26;  J.  M.  Schofield,  Forty- 
six  Years  in  the  Army,  Ch.  xix. 
^'0.  R.,  Ser.  Ill,  Vol.  3,  pp.  686,  917-918. 
'^Ihid.,  pp.  1139-1144. 


»/ 


382  THE  CONSTITUTION  UNDER  LINCOLN 

pointed  various  district  superintendents  and  local  super- 
intendents, with  duties  extending  over  parts  of  Virginia 
and  North  Carolina.  These  ofiBcers  were  to  decide  what 
negroes  were  free  by  the  proclamation ;  take  a  negro  cen- 
sus; supervise  contracts  with  white  employers  so  as  to 
prevent  fraud;  keep  accounts  of  lands  allotted  to  colored 
tenants;  cooperate  with  persons  coming  to  teach  the 
freedmen;  and,  in  general,  to  deal  with  the  whole  prob- 
lem of  the  liberated  slaves.  Later  the  War  Department 
took  up  the  negro  problem  in  a  comprehensive  way; 
and,  in  1865,  Congress  created  for  this  purpose,  before 
the  war  ended,  the  Freedmen's  Bureau.-^  It  is  true 
that,  in  general  throughout  the  Confederacy,  the  slaves 
remained  quiet  and  loyal  to  their  Southern  masters;  -® 
but  it  is  also  true  that,  where  Federal  armies  advanced, 
thousands  came  within  Union  control.  The  practical 
effect  of  the  proclamation,  then,  can  hardly  be  disputed. 
Its  legal  effect  is  a  different  matter.-"^  Slavery  existed 
on  the  basis  of  law;  and  if  it  were  to  be  permanently 
abolished,  this  would  have  to  be  done  by  some  process 
of  law.  Just  what  would  have  been  the  status  of  slavery 
if  there  had  been  no  anti-slavery  amendment,  is  a  diffi- 
cult question.  While  insisting  that  the  freedom  declared 
in    his    proclamation    was    irrevocable,-^    Lincoln    had 

"The  Freedmen's  Bureau  was  created  by  act  of  March  3,  1SG5: 
U.  S.  Stat,  at  Large,  XIII,  507. 

"  Concerning  the  absence  of  servile  insurrection  as  a  result  of  the 
Emancipation  Proclamation,  sec  Rhodes,  History  of  the  United  States, 
V,  460-161. 

"There  was  an  obscure  case  at  St.  Louis  early  in  1863  which  involved 
the  legality  and  applicability  of  the  Emancipation  Proclamation.  A 
negro  slave,  escaped  from  Arkans;is  (to  which  the  proclamation  ap- 
plied), was  convicted  of  grand  larcenj\  The  judge  decided  that  the 
proclamation  made  him  free,  and  that  he  should  be  imprisoned  in 
the  penitentiary  as  a  "free  criminal,"  whereas  a  slave  would  have  been 
punished  with  lashes  on  the  bare  back.  (New  York  World,  Feb.  6, 
1863.) 

"Rhodes,  History  of  the  United  States,  V,  58,  69;  Nicolay  and  Hay, 
Works,  VIII,  182;  IX,  249;  XI,  31. 


EMANCIPATION  COMPLETED  383 

doubts  as  to  the  manner  in  which  the  courts  would  treat 
his  edict.  He  thought  that  it  was  a  war  measure  and 
would  be  inoperative  at  the  close  of  the  war,  but  he  was 
not  sure.^^  His  attitude  toward  the  Thirteenth  Amend- 
ment showed  how  conscious  he  was  of  legal  deficiencies 
in  the  proclamation, ^°  and  these  doubts  were  reflected  in 
Congress  where  proposals  to  incorporate  the  proclama- 
tion into  Federal  law  were  presented  by  supporters  of 
the  administration.^^ 

One  of  the  ablest  lawyers  of  that  day  put  the  matter 
thus:  "That  an  army  may  free  the  slaves  of  an  enemy 
is  a  settled  right  of  law.  .  .  .  But  if  any  man  fears  or 
hopes  that  the  proclamation  did  as  a  matter  of  law  by 
its  own  force,  alter  the  legal  status  of  one  slave  in 
America  ...  he  builds  his  fears  or  hopes  on  the  sand. 

"  Nicolay  and  Haj'',  Lincoln,  X,  123. 

"The  proclamation,  said  Lincoln,  "falls  short  of  what  the  amend- 
ment will  be.  ...  A  question  might  be  raised  whether  the  proclamation 
was  legally  valid.  It  might  be  urged  that  it  only  aided  those  that 
came  into  our  lines,  and  that  it  was  inoperative  as  to  those  who  did 
not  give  themselves  up;  or  that  it  would  have  no  effect  upon  the 
children  of  slaves  born  hereafter;  in  fact  it  would  be  urged  that  it 
did  not  meet  the  evil.  But  this  amendment  is  a  king's  cure-all  for  all 
evils.  It  winds  the  whole  thing  up."  (Nicolay  and  Hay,  Works,  X, 
353.) 

"Various  acts  were  proposed  in  Congress  to  give  effect  to  the  Eman- 
cipation Proclamation.  Representative  Arnold  of  Illinois  introduced  a 
bill  "for  .  .  .  carrying  into  more  complete  and  immediate  execution" 
the  President's  proclamation.  It  "prohibited"  the  reenslaving  of  any 
person  declared  free  by  the  proclamation,  but  imposed  no  penalty. 
When  the  Wade-Davis  bill  was  under  consideration,  Sumner  moved 
an  amendment  providing  that  the  proclamation  "is  hereby  adopted  and 
enacted  as  a  statute  of  the  United  States  and  as  a  rule  for  the  govern- 
ment of  the  military  and  naval  forces  thereof."  (A  sort  of  additional 
"article  of  war.")  "I  wish  to  see  emancipation  in  the  rebel  States,"  said 
Sumner,  "placed  under  the  guarantee  of  an  act  of  Congress.  I  do  not 
wish  to  see  it  left  to  float  on  a  presidential  proclamation."  Neither 
of  these  measures  was  adopted,  but  they  gave  a  certain  satisfaction 
to  such  opponents  of  emancipation  as  Saulsbury  of  Delaware,  who  re- 
marked that  he  had  not  so  soon  expected  the  President's  friends  to 
make  open  confession  that  his  acts  were  illegal.  {Cong.  Globe,  38 
Cong.,  1  sess.,  pp.  20,  3460.) 


384   THE  CONSTITUTION  UNDER  LINCOLN 

It  is  a  military  act  and  not  a  decree  of  a  legislator.  It 
has  no  legal  effect  by  its  own  force  on  the  status  of  the 
slave.  ...  If  you  sustain  the  war  you  must  expect  to 
see  the  war  work  out  emancipation."  ^-  And  Secretary 
Welles  of  the  Navy  wrote  in  1863:  "What  is  to  be  the 
ultimate  effect  of  the  Proclamation,  and  what  will  be  the 
exact  status  of  the  slaves  .  .  .  were  the  States  now  to 
resume  their  position,  I  am  not  prepared  to  say.  The 
courts  would  adjudicate  the  questions;  there  would  be 
legislative  action  in  Congress  and  in  the  States  also." 
He  added,  however,  that  no  slave  who  had  left  a  "rebel" 
master  and  come  within  the  Union  lines,  or  who  had 
serv^ed  under  the  flag,  could  ever  again  be  forced  into 
involuntary  serv'itude.^^ 

Hare,  a  reliable  authority  on  constitutional  law,  is 
somewhat  more  positive  as  to  the  permanent  effect  of 

"Speech  of  R.  H.  Dana,  Jr.,  at  Providence,  R.  I.:  New  York 
Tribune,  April  13,  1865.  In  his  annotations  of  Wheaton's  treatise  on 
international  law,  Mr.  Dana  discussed  the  legal  force  and  significance 
of  the  Emancipation  Proclamation.  He  said:  "Although  the  lan- 
guage of  the  proclamation  is  general,  and  in  the  present  tense,  as  if 
giving  a  legal  status  of  freedom,  from  its  date,  to  all  slaves  in  the 
designated  States,  still  ...  it  would  seem  that,  being  a  military 
measure  by  a  commander-in-chief  who  had  no  general  legislative  au- 
thority over  regions  .  .  .  not  in  his  possession,  it  could  not  operate 
further  than  as  a  military  order.  From  that  time,  all  slaves  coming 
under  the  control  of  the  forces  of  the  United  States  in  the  manner 
recognized  by  the  law  of  belligerent  occuiiation,  were  to  be  free. 
If  this  is  the  correct  view,  ...  it  became  therefore  a  question  of  fact, 
as  to  each  slave  and  each  region  of  the  country,  whether  the  forces 
of  the  Union  had  such  possession  as  to  give  effect  to  the  proclamation." 
Dana  added  that  the  President  could  have  no  legislative  functions 
"which  could  operate,  by  a  mere  declaration  of  his  will,  in  places  out 
of  his  belligerent  control,"  but  went  on  to  say  that  "all  the  designated 
districts  did  at  last  come  under  the  military  occupation  of  the  armies 
of  the  Union,  in  such  sense  as  to  effect  the  emancipation  of  all  slaves 
in  the  strictest  view  of  the  law  of  belligerent  occupation,  and  the 
system  of  slavery  has  since  been  abolished  .  .  .  by  an  amendment  to 
the  Constitution."  (Henry  Wheaton.  Elements  of  International  Law, 
ed.  by  R.  H.  Dana,  Jr.  [Boston,  1866],  441,  n.) 

"Diary  oj  Gideon  Welles,  I,  415.     (Aug.  22,  1863.) 


EMANCIPATION  COMPLETED  385 

the  proclamation.  It  was,  he  said,  a  mere  command 
which  could  effect  no  change  till  executed  by  the  hand 
of  war;  "but  if  carried  into  execution  it  might,  like  other 
acts  jure  belli,  work  a  change  that  would  survive  on  the 
return  of  peace."  ^^  Admitting  the  right  of  emancipa- 
tion as  coming  within  the  jiLs  belli,  one  could  say  that 
the  liberated  slave  would  be  as  secure  in  his  altered 
status  as  contraband  property,  if  seized,  would  be  in  its 
new  ownership.  This  would  apply  only  to  those  slaves 
actually  liberated  by  the  incidents  of  war. 

Taken  at  its  best,  however,  the  proclamation,  with  its 
partial  application,  was  not  a  comprehensive  solution 
of  the  slavery  problem;  and,  in  spite  of  this  striking  use 
of  national  authority,  the  slavery  question,  from  1863  to 
1865,  still  remained,  in  large  part,  a  State  matter. 


m 

Thus  there  came,  in  the  fast  moving  development  of 
pubhc  policy  during  the  Civil  War,  an  awkward,  transi- 
tional stage  when  the  laws  concerning  slavery  were  half 
State,  half  national.  Especially  between  1863  and  1865, 
the  main  question  as  to  the  legal  existence  of  slavery 
within  a  State  rested  with  the  State  itself,  while  at  the 
same  time  there  were  various  acts  on  the  statute-books 
of  the  nation  which  seriously  interfered  with  the  institu- 
tion. Though  slavery  still  existed  within  the  border 
States,  yet  many  (in  some  cases  a  great  majority)  of  the 
actual  "slaves"  of  these  States  might  be  free  by  Federal 
law.  Among  those  thus  made  free  were  slave-soldiers 
and  their  families,  slaves  belonging  to  "rebels,"  and  slave 
refugees  from  the  States  in  "rebellion."  Control  of  ne- 
groes in  general  was  a  matter  of  State  jurisdiction;  yet 

"J.  I.  C.  Hare,  American  Constitutional  Law,  II,  945-946. 


L^ 


386  THE  CONSTITUTION  UNDER  LINCOLN 

such  control  might  easily  be  carried  to  the  point  of  con- 
flict with  national  authority,  as  for  instance  in  a  case 
where  the  wife  of  a  slave-soldier,  seeking  employment  at 
wages  as  a  free  woman,  might  find  herself  confronted 
with  the  State  law  prohibiting  slaves  from  running  at 
large,  and  forbidding  the  hiring  or  harboring  of  fugitives 
from  labor.    Such  conflicts  were,  in  fact,  numerous. 

Furthermore,  though  certain  classes  of  slaves  had 
become  "free"  by  national  law,  they  were  free  negroes; 
and  the  laws  defining  their  status  as  freemen  were  State 
laws,  for  the  Fourteenth  Amendment  giving  civil  rights 
to  the  colored  race  had  not  yet  been  passed.  Free  ne- 
groes in  the  border  States  did  not  have  the  privileges 
of  whites.  In  Kentucky,  Maryland,  and  Delaware,  the 
immigration  of  free  negroes  was  forbidden,  and  those 
within  the  States  were  under  special  disabihties.  Va- 
grant free  negroes,  for  instance,  could  be  sold  as  slaves 
for  one  year  in  Maryland ;  and  such  negroes  were  under 
definite  restrictions  as  to  the  holding  of  assemblages, 
being  forbidden  to  congregate  in  camp  meetings  without 
white  supervision.  The  laws  of  these  States^'  hedged 
in  the  legal  process  of  emancipation  with  various  restric- 
tions, requiring  written  record  of  manumission,  by  deed 
or  will.^^  Consequently,  the  Federal  laws  broadly  con- 
ferring "freedom"  upon  whole  classes  of  negroes  without 
any  provision  for  the  legal  proving  of  such  freedom  by 
particular  individuals,  introduced  an  unfamiliar  method 
of  liberation  (if  it  could  be  called  a  "method")  which 
would  be  diflficult  to  administer  in  a  State  still  endeav- 
oring to  conserve  slavery. 

"The  Maryland  Code,  1860,  Art.  66;  Reinsed  Statutes  of  Kentucky, 
1860,  pp.  359  et  scq.;  Revised  Statutes  of  Delaware,  1852,  Ch.  52. 

"By  Kentucky  law,  slaves  could  be  emancipated  only  on  condition 
of  being  removed  from  the  State;  and  no  deed  or  will  of  emancipation 
could  confer  absolute  freedom  until  such  removal  should  have  been 
effected.    (.Revised  Statutes  of  Kentucky,  1860,  Ch.  93,  Art.  ix.) 


EMANCIPATION  COMPLETED  387 

This  legal  confusion  was  sure  to  produce  serious  con- 
flict in  case  an  aggressive  attempt  to  protect  the  freed- 
men  on  the  part  of  the  Federal  authorities  should  be  met 
by  a  determination  to  assert  State  rights.  Such  a  situa- 
tion existed  in  Kentucky  in  1865.  Various  judges  in 
that  State  decided  that  the  Federal  law  giving  freedom 
to  the  families  of  slave-soldiers  was  unconstitutional;  ^'^ 
and  white  employers  hiring  such  persons  were  prosecuted 
in  the  State  courts  for  the  offense  of  harboring  slaves. 
General  J.  M.  Palmer  of  the  Federal  army,  who  re- 
mained within  the  State  after  the  war  because  of  the 
disturbed  condition  of  affairs,  took  the  extreme  position 
that  slavery  had  "ceased  to  exist  in  Kentucky,"  and  used 
his  military  power  to  make  the  freedom  of  the  colored 
people  effective.  Palmer  argued  that  165,000  of  the 
slaves  of  Kentucky  were  free  as  Federal  soldiers,  as  the 
close  kinsmen  of  soldiers,  or  as  belonging  to  "rebels." 
He  then  asked.  Why  may  not  the  remaining  65,000  also 
be  free,  though  the  mode  of  their  emancipation  has  not 
been  pointed  out?  Some  States,  he  said,  once  had  laws 
against  witchcraft  but  not  necessarily  witches.  "They 
have  laws  in  Kentucky  in  reference  to  slavery,  but  in 
my  judgment  no  slaves."  "The  whole  slave  system  of 
Kentucky,"  he  asserted,  "is  subverted  and  overthrown, 
and  ...  in  point  of  law  and  fact  [it]  controls  no  one." 

Finding  the  passage  of  the  Ohio  River  blocked  and 
other  travel  closed  to  negroes  whether  free  or  slave,  and 
desiring  to  avert  pestilence  and  relieve  labor  shortage, 
Palmer  ordered  his  provost  marshals  to  issue  passes  to 
unemployed  negroes,  and  ordered  ferry  boats,  steam- 
boats, and  railroads  to  transport  them.  This  was  done 
as  an  emergency  measure,  and  no  attempt  was  made  to 
investigate  the  question   of  freedom.     "The  free,"  he 

"Statement  of  General  J.  M.  Palmer:     Chicago   Tribune,  Oct.  27, 
1865,  p.  1. 


388  THE  CONSTITUTION  UNDER  LINCOLN 

said,  "had  a  right  to  demand  from  me  that  protection 
which  .  .  .  slave  laws  denied  them.  If,  in  separating 
the  free  from  the  slaves,  the  discriminations  were  not 
always  accurate,  it  was  the  fault  of  those  who  made  the 
separation  necessary."  ^^ 

The  resistance  of  the  State  authorities  to  General 
Palmer's  course  was  defiant  and  widespread.^^  Owners 
advertised  the  departure  of  their  slaves,  and  employers 
though  in  need  of  labor  refused  to  hire  the  ''fugitives." 
Many  suits  and  prosecutions  in  the  State  courts  re- 
sulted: damage  suits  to  recover  the  value  of  escaped 
slaves;  criminal  actions  against  officers  "giving  passes  to 
negroes  not  their  own  property";  actions  for  false  im- 
prisonment brought  by  State  officials  who  were  arrested 
for  expelhng  negroes  from  railroad  cars;  indictments  for 
illegally  harboring  runaway  slaves,  and  the  like.  Many 
individuals  brought  actions  against  General  Palmer,  and 
in  the  case  of  The  Commonwealth  of  Kentucky  versus 
John  M.  Palmer  "^^  it  was  held  by  the  highest  court  in 
the  State  that  the  Federal  Government  had  no  consti- 
tutional power  to  abolish  slavery  by  military  force  in 
Kentucky,  and  that  the  general  was  guilty  of  felony. 
It  was  only  by  the  Thirteenth  Amendment  that  this 
deadlock  on  the  slavery  question  within  the  State  was 
terminated. 

IV 

Except  Kentucky  and  Delaware,  every  one  of  the 
border  slavcholding  States  abolished  slavery  by  State 
action   before   the   Thirteenth    Amendment   went   into 

"Letter  of  J.  M.  Palmer  to  Secretary  Stanton,  October  2,  1865: 
Chicago  Tribune,  Oct.  17,  1865,  p.  3;  Stanton  Papers,  Oct.  2,  1865. 

™  Frankfort  (Ky.)  Commonwealth,  September  9,  1865;  Personal 
Memoirs  of  J.  M.  Palmer,  243-247;  264-266. 

*''2  Bush  570. 


EMANCIPATION  COMPLETED  389 

effect.  In  West  Virginia  a  clause  providing  gradual 
emancipation  was  inserted  in  the  first  constitution  of 
the  newly  formed  State  in  1863,  to  fulfill  one  of  the 
requirements  of  its  admission  into  the  Union. ^^  By- 
constitutional  amendment  slavery  was  immediately 
abolished  in  Tennessee  in  February,  1865;  and  that 
portion  of  the  old  constitution  which  prohibited  the 
legislature  from  emancipating  slaves  without  the  owners' 
consent  was  abrogated.^-  In  Maryland  abolition  was 
effected  by  an  ordinary  law  which  merely  "repealed"  the 
slave  code  of  the  State  concerning  negroes,  such  code 
being  originally  but  the  enactment  of  the  legislature.^^ 
A  still  different  method  was  adopted  in  Missouri,  where 
the  institution  was  abolished  by  ordinance  passed  by  a 
State  convention.  This  occurred  on  January  11,  1865, 
a  month  before  the  legislature  ratified  the  Thirteenth 
Amendment.^^ 

In  Delaware,  which  contained  in  1865  about  20,000  free 
negroes  with  less  than  one-tenth  as  many  slaves,  one 
finds  a  remarkable  tenacity  in  clinging  to  an  institution 
that  was  crumbling  on  every  side.  The  legislature  con- 
demned the  Emancipation  Proclamation  "as  a  flagrant 
attempt  to  exercise  absolute  power  under  the  pretense 


"Constitution  of  West  Virginia  (1863),  Art.  XI,  sec.  7;  U.  S.  Stat,  at 
Large,  XII,  633. 

■"The  inconveniences  of  what  we  have  called  the  "transitional"  phase 
of  emancipation  are  illustrated  by  the  message  of  Governor  W.  G. 
Brownlow  of  Tennessee,  April  4,  1865,  in  which  he  objected  to  Tennes- 
see being  overrun  with  emancipated  slaves  from  other  States,  and 
suggested  a  "separate  territory"  where  they  could  permanently  settle. 
{Acts  of  the  State  oj  Tennessee,  1865,  p.  5.  For  abolition  by  the  con- 
vention in  Tennessee,  see  ibid.,  ix-xiii.) 

*^  Section  82  of  the  code  concerning  negroes,  making  it  possible  to 
recover  against  free  negroes  breaking  labor  contracts,  was  not  repealed. 
{The  Maryland  code,  1860,  Art.  66;  Laws  oj  Maryland,  1865,  p.  306.) 

^E.  M.  Violette,  A  History  oj  Missouri  (1918),  Ch.  xix;  General 
Statutes  oj  Missouri,  1866,  p.  46;  H.  A.  Trexler,  Slavery  in  Missouri, 
1804-1865,  pp.  239-240. 


390  THE  CONSTITUTION  UNDER  LINCOLN 

of  military  necessity,"  and  refused  to  ratify  the  Thir- 
teenth Amendment,  taking  occasion  to  express  their  "un- 
qualified disapproval"  thereof.  Governor  Carmon's  ad- 
vice that  Delaware  pass  an  emancipation  law  was  not 
followed.*^ 

The  action  of  Delaware  and  Kentucky  emphasized 
the  fact  that  the  war  closed  with  slavery  still  a  matter 
of  State  law,  though  seriously  interfered  with  by  na- 
tional authority.  The  ultimate  disposition  of  the  slavery 
issue  was,  as  Gideon  Welles  said,  "one  of  the  most  deli- 
cate and  important  problems  .  .  .  that  had  ever  de- 
volved on  those  who  administered  the  government";  for 
while  the  progress  of  events  demanded  the  complete 
abolition  of  slavery,  it  was  necessary,  at  least  as  to  those 
commonwealths  which  did  not  secede,  to  show  respect 
for  State  rights.  Welles  thought  that  the  only  way  out 
"was  for  the  border  States  to  pass  emancipation  laws";  *^ 
but,  for  a  problem  which  had  become  so  definitely  a 
national  issue  as  had  the  slavery  question  by  1865,  an 
amendment  to  the  Federal  Constitution  was  considered 
both  more  appropriate  and  more  efi'ective. 


We  find  the  legal  necessity  for  a  constitutional  amend- 
ment abolishing  slavery  well  expressed  by  Senator  Trum- 
bull of  Illinois,  who  reported  the  Thirteenth  Amendment 
from  the  Committee  on  the  Judiciary,  Reviewing  the 
various  acts  by  which  Congress  had  dealt  piecemeal  with 
the  slavery  question,  he  declared  that  these  were  in- 
effectual for  the  destruction  of  slavery,  while  the  force 

*^  Maryland  Documents,  1864,  p.  25;  Delaware  House  Journal,  1865, 
pp.  11,  148,  153;  Delaware  Senate  Journal,  1865,  pp.  126,  128;  Laws  o) 
Delaware,  1861-1865,  p.  684. 

"  Diary  oj  Gideon  Welles,  I,  403.     (Aug.  13,  1863.) 


EMANCIPATION  COMPLETED  391 

and  effect  of  the  President's  proclamation  were  matters 
of  controversy.  The  opponents  of  the  proclamation, 
Trumbull  said,  declared  "that  it  was  issued  without  com- 
petent authority,  and  .  .  .  cannot  effect  the  emancipa- 
tion of  a  single  slave."  Moreover,  the  proclamation 
excepted  from  its  provisions  "almost  half  the  slave 
States."  ^' 

Some  more  effectual  way  of  getting  rid  of  slavery,  he 
said,  must  be  found.  As  to  the  suggestion  that  Congress 
pass  such  a  law,  Trumbull  pointed  out  that  the  inability 
of  Congress  to  interfere  with  slavery  in  the  States  had 
long  been  an  "admitted  axiom"  in  peace  times  and  that 
the  war  power  conferred  no  such  right.  Constitutional 
amendment  he  found  to  be  "the  only  effectual  way  of 
ridding  the  country  of  slavery  ...  so  that  it  cannot  be 
resuscitated."  "This  amendment  adopted,"  he  said,  "not 
only  does  slavery  cease,  but  it  can  never  be  reestablished 
by  State  authority,  or  in  any  other  way  than  by  again 
amending  the  Constitution."  He  therefore  proposed  the 
submission  to  the  States  of  the  following  amendment: 

Article  XIII 

Sec.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

This  amendment  was  the  first  example  of  the  use  of 
the  amending  process  to  accomplish  a  specific  reform  on 
a  nation-wide  scale,  outside  what  may  be  called,  in  a 
narrow  sense,  the  strictly  constitutional  function,  which 

*'  Cong.  Globe,  38  Cong.,  1  sess.,  p.  1314. 


392  THE  CONSTITUTION  UNDER  LINCOLN 

is  to  declare  what  the  government  shall  be,  how  it  shall 
be  formed  in  its  various  branches,  and  how  far  its  au- 
thority shall  extend.  The  first  ten  amendments,  estab- 
lishing fundamental  limitations  upon  the  Federal  power; 
the  Eleventh,  limiting  the  jurisdiction  of  the  Federal 
courts;  and  the  Twelfth,  perfecting  the  process  of  choos- 
ing the  President,  had  all  dealt  with  matters  of  a  truly 
constitutional,  as  distinct  from  a  legislative,  character. 
To  many  minds,  therefore,  the  Thirteenth  Amendment 
represented  a  new  use  of  the  "amending  power."  In  the 
congressional  debates  upon  the  resolution  of  proposal, 
not  only  the  expediency  and  wisdom  of  such  an  amend- 
ment, but  also  its  "constitutionality"  was  elaborately 
discussed. 

That  process  which  Trumbull  advocated  to  silence  all 
legal  doubts  was  thus  assailed  as  being  itself  invalid. 
The  abolition  of  slavery,  it  was  said,  was  outside  the 
scope  of  the  Constitution  altogether.  Slavery  was  a 
domestic  institution,  lying  wholly  within  the  field  of 
State  jurisdiction,  an  institution  which  did  not  exist  by 
virtue  of  the  Federal  compact,  but  had  its  roots  far  back 
in  colonial  times.  With  such  an  institution  the  Federal 
Government  had  nothing  to  do,  except,  indeed,  to  "pro- 
tect" it  in  the  particular  ways  specified  by  the  Constitu- 
tion itself.  If  such  an  omnipotent  power  be  granted,  it 
could  be  used  "to  blot  out  of  existence  any  State  in  this 
Union."  It  was  not  to  be  supposed  that  the  "Fathers" 
would  have  entered  into  the  Federal  agreement  if  it  had 
been  suggested  that  in  the  future  the  rights  of  property 
or  the  relation  of  master  and  slave  within  the  States 
would  be  invaded. 

Being  asked  whether  it  was  not  competent  for  the 
framers  originally  to  have  prohibited  slavery  by  consti- 
tutional provision,  an  opponent  of  the  amendment  an- 
swered: Yes,  all  the  States  in  making  the  Constitution 


EMANCIPATION  COMPLETED  393 

could  have  done  this;  but  it  does  not  follow  that  what 
the  original  parties  to  the  agreement  could  have  done 
by  unanimous  action  can  now  be  effected  by  three- 
fourths  of  the  States  and  imposed  upon  the  dissenting 
ones.  Regarding  the  Constitution  as  being  in  the  nature 
of  a  contract,  such  action  would  be  in  fraud  of  the  orig- 
inal agreement,  being  contrary  to  the  purposes  that  all 
had  in  view  when  the  agreement  was  made.  It  would 
be  similar  to  a  case  where  various  parties  unanimously 
form  a  contract  for  given  purposes  and  then  three- 
fourths  of  the  parties,  having  in  view  a  matter  beyond 
the  original  agreement,  turn  and  say  to  the  dissenting 
fourth :  "We  will  bind  you  because  you  have  entered  in." 
Such  action,  it  was  urged,  would  be  regarded  as  fraud 
by  the  courts."*^ 

As  Congressman  Pendleton  of  Ohio  expressed  it, 
''neither  three-fourths  of  the  States,  nor  all  the  States 
save  one,  can  abolish  slavery  in  that  dissenting  State; 
because  it  lies  within  the  domain  reserved  entirely  to 
each  State  for  itself,  and  upon  it  the  other  States  cannot 
enter."  ^^  "The  Constitution,"  declared  Pruyn  of  New 
York,  "would  never  have  been  ratified  had  it  been  sup- 
posed by  the  States  that,  under  the  power  to  amend, 
their  reserved  rights  might  one  by  one  be  swept  away. 
This  is  the  first  time  in  our  history  in  which  an  attempt 
of  this  kind  has  been  made,  and  should  it  be  successful 
it  will  ...  be  an  alarming  invasion  of  the  principles  of 
the  Constitution."  The  matter,  he  added,  should  be  left 
with  the  States,  or  there  should  be  passed  "a  supplemen- 
tary article  to  the  Constitution,  not  as  an  amendment, 


**  Speech  of  Senator  Saulsbury:  Cong.  Globe,  38  Cong.,  1  sess.,  p. 
1441.  This  passage  in  Senator  Saulsbury 's  speech  is  paraphrased,  not 
directly  quoted,  above. 

^'Ayin.  Cyc,  1865,  p.  207. 


394  THE  CONSTITUTION  UNDER  LINCOLN 

but  as  the  grant  of  a  new  power  based  on  the  consent 
oj  all  the  States,  as  the  Constitution  itself  is."  ^"^ 

Pruyn's  idea  was  that  where  so  fundamental  a  change 
is  involved,  something  more  than  an  amendment  is  nec- 
essary. He  therefore  introduced  the  suggestion  of  "a 
supplementary  article"  which  would  have  the  assent  of 
all  the  States,  as  did  the  "Constitution  itself."  He 
thought  of  a  mere  amendment  as  something  different 
from  the  Constitution.  The  idea  of  such  a  distinction 
is  natural  enough,  and  it  is  indeed  hard  in  our  ordinary 
thought  to  exalt  a  constitutional  amendment  to  the 
height  of  one  of  the  great  articles  of  the  original  Con- 
stitution. It  may  be  natural  also  for  those  in  the  mi- 
nority to  feel  a  certain  resentment  against  an  instrument 
of  government  which  was  agreed  to  as  a  whole  by  every 
State  entering  the  L^nion,^^  and  yet  which  allows  an 
amendment  to  be  made  by  only  three-fourths  of  the 
States  and  two-thirds  of  Congress. 

Yet  political  scientists  would  recognize  no  such  dis- 
tinction. Aside  from  the  restriction  concerning  the 
"equal  suffrage"  ^-  of  the  States  in  the  Senate,  the  Con- 
stitution, since  1808,  has  contained  no  unamendable  part, 
and  it  designates  no  field  of  legislation  that  may  not  be 
reached  by  the  amending  power.    An  amendment  prop- 

^Cong.  Globe,  38  Cong.,  2  sess.,  p.  154.  The  italics  are  in  the 
original. 

"  When  each  State  entered  the  Union,  it  accepted  the  whole  Con- 
stitution at  the  time  of  entering. 

"  Even  the  provision  regarding  equal  representation  of  the  States  in 
the  Senate  is  not,  in  the  strictest  sense,  "unamendable."  The  con- 
stitutional requirement  is  not  that  this  feature  of  the  government  shall 
remain  unchanged,  but  that  the  consent  of  a  State  is  necessary  before 
that  State's  equal  suffrage  in  the  upper  house  can  be  denied.  (Con- 
stitution of  the  United  States,  Art.  V.)  Furthermore,  it  has  been 
argued  that  no  constitution  should  contain  unamendable  parts,  and 
that  a  provision  declaring  a  certain  part  "unamendable"  is  not  bind- 
ing, since  the  constitution-making  power  is  one  of  full  and  unre- 
strained sovereignty.  (J.  A.  Woodburn,  The  American  Republic,  209- 
210;  J.  W.  Burgess,  The  Civil  War  and  the  Constitution,  I,  134.) 


EMANCIPATION  COMPLETED  395 

erly  made  becomes  "valid,  to  all  intents  and  purposes, 
as  part  of  this  Constitution,"  having  as  much  force  as 
any  other  article.  There  is  no  valid  distinction  between 
"the  Constitution  itself"  and  the  amendments.  The 
Constitution  at  any  given  time  includes  all  up  to  the 
latest  amendments,  and  excludes  portions  that  have  not 
survived  the  amending  process.  We  should  think  not  of 
"the  Constitution  and  its  amendments,"  but  of  "the 
Constitution  as  amended."  This  is  especially  true  when 
we  reflect  that  certain  of  the  amendments  supplant  or 
construe  portions  of  the  original  document. ^^ 

Those  who,  in  the  discussion  we  have  just  noted, 
argued  against  any  amendment  that  would  fundamen- 
tally alter  the  "Constitution  itself,"  had  in  mind,  pri- 
marily, the  reserved  power  principle,  and  denied  that, 
by  the  "amending  power,"  the  "general  government" 
would  have  a  right  to  do  away  with  the  reserved  rights 
of  the  States.  There  is  a  confusion  of  thought  here,  for 
there  is  no  "amending  power"  belonging  to  the  Federal 
Government.  When  an  amendment  is  adopted  it  is  done 
not  by  the  "general  government,"  but  by  the  supreme 
sovereign  power  of  the  nation — i.  e.,  the  people — acting 
through  State  legislatures  or  State  conventions.  Even 
the  reserved  power  principle  (which,  by  the  way,  is  ex- 
pressed in  the  Tenth  Amendment)  is  within  the  amend- 
ing power  of  the  people. 

This  amending  power,  it  may  be  noted,  is  equivalent 
to  the  constitution-making  power  and  is  wholly  above 
the  authority  of  the  Federal  Government.  An  alterna- 
tive method  of  amending  the  Constitution  is  permitted 
in  which  Congress  has  practically  no  participation;  for 

"The  Eleventh  Amendment  is  not  so  much  an  alteration  of  the 
Constitution  as  it  is  a  rule  of  construction.  It  would  have  been  unnec- 
essar>'  if  the  original  Constitution  had  not  been  given  an  interpretation 
which  many  regarded  as  unreasonable  even  though  a  literal  application 
of  the  words  of  the  Constitution  seemed  to  justify  it. 


396  THE  CONSTITUTION  UNDER  LINCOLN 

an  amendment  may  be  proposed  by  a  convention  which 
Congress  is  required  to  call  upon  the  apphcation  of  the 
legislatures  of  two-thirds  of  the  States,  and  it  then  be- 
comes valid  when  ratified  by  legislatures  or  conventions 
in  three-fourths  of  the  States.^*  The  function  of  Con- 
gress in  such  a  case  would  be  merely  to  issue  the  call 
for  the  convention  (which  would  be  obligatory)  and  to 
propose  one  of  two  possible  modes  of  ratification.  It  will 
thus  be  seen  that  the  Federal  Government  not  only  lacks 
the  "amending  power,"  but  it  does  not  even  possess  the 
exclusive  right  to  initiate  an  amendment. 

VI 

The  contention,  therefore,  that  the  question  of  slavery 
constituted  subject  matter  beyond  the  reach  of  consti- 
tutional amendment,  while  supported  by  very  ingenious 
arguments,  will  hardly  bear  analysis.  But  there  was 
another  ground  on  which  the  validity  of  the  anti-slavery 
article  was  attacked.  It  was  urged  that  the  method  of 
adoption  prescribed  by  the  Constitution  was  not  com- 
plied with,  in  that  the  valid  ratification  of  three-fourths 
of  all  the  States  was  not  in  fact  obtained. 

It  is  significant  that  Trumbull  himself,  the  author  of 
the  amendment,  expressed  doubts  as  to  whether  the 
Constitution  could  be  legally  amended  during  the  Civil 
War.  When,  in  1863,  an  amendment  suggested  by 
another  Senator  was  under  discussion,  he  raised  the 
question  whether  the  L^nited  States  had  "authority  in 
enough  of  the  States  of  this  Union  to  obtain  the  expres- 
sion of  their  opinion  as  to  whether  they  would  consent 
to  a  change  or  not."  ^^  When  he  presented  the  Thir- 
teenth Amendment,  however,  in  March,  1864,  the  proba- 
bilities for  obtaining  a  legal  ratification  seemed  stronger. 

'^Constitution  of  the  United  States,  Art.  V. 

"Cong.  Globe,  January  29,  1863,  37  Cong.,  3  sess.,  p.  592. 


EMANCIPATION  COMPLETED 


397 


His  calculations  were  based  upon  the  acceptance  of  the 
amendment  by  three-fourths  of  all  the  States,  including 
those  which  had  seceded,  but  which  for  this  purpose,  he 
considered  "States  of  the  Union." 

The  following  table  gives  the  complete  showing  as  to 
the  status  and  the  ratifying  action  of  all  the  States. 

Table  Showing  States  at  the  Time  of  the  Adoption  of  the 
Thirteenth  Amendment,  December  18,  1865 

Note.  Italics  indicate  those  States  whose  ratifications  were  counted 
in  Seward's  proclamation  of  December  18,  1865,  declaring  the  amend- 
ment in  force. 


Slave  States  of 

States 

of  the  Former 

Free 

States  of 

the  Union 

the  Union 

Confederacy 

Cal. 

Md. 

Ohio 

Del. 

Ark. 

La. 

Conn. 

Mich. 

Ore. 

Ky. 

Tenn. 

Miss. 

III. 

Minn. 

Pa. 

N.  C. 

Ala. 

Ind. 

Mo. 

R.  I. 

Va.* 

Ga. 

la. 

N.  H. 

Vt. 

Tex. 

S.C. 

Kas. 

N.  J. 

W.  Va. 

Fla. 

Me. 

A^.  Y. 

Wis. 

Mass. 

Nev. 

Total,  23 

Total,  2 

Total,  11 

Total  of  all  the  States,  36. 


♦The  United  States  Government  recognized  the  "restored  govern- 
ment" of  Virginia;  and  that  State  was,  rather  fictitiously,  represented 
in  the  Federal  Congress  in  the  early  part  of  the  war.  It  was  not, 
however,  considered  to  be  in  the  Union  in  1865. 

In  December,  1865,  when  the  amendment  went  into 
force,  the  thirty-six  States  came  within  the  following 
classification:  slave  States  of  the  former  Confederacy, 
11;  free  States  of  the  Union,  23;  slave  States  of  the 
Union,  2  (Delaware  and  Kentucky).  As  Delaware  and 
Kentucky  refused  to  ratify,  it  would  be  necessary  to 
have  the  favorable  action  of  at  least  four  of  the  States 


398  THE  CONSTITUTION  UNDER  LINCOLN 

once  belonging  to  the  Confederacy  in  addition  to  all  the 
free  States  to  make  up  the  full  three-fourths.  As  a  mat- 
ter of  fact,  while  action  in  four  of  the  free  States  was 
still  being  awaited,  Secretary  Seward,  counting  the  rati- 
fications of  eight  of  the  former  Confederate  States,  in 
addition  to  that  of  19  of  the  free  States,  proclaimed,  on 
December  18,  1865,  that  the  amendment  was  in  force. ^^ 

As  to  the  justice  of  submitting  an  amendment  at  a 
time  when  the  Southern  States  were  in  no  position  to 
consider  it,  and  "imposing  it  upon  one-fourth  which  had 
not  ratified  it,"  the  friends  of  the  amendment  pointed 
out  that  all  the  States  in  entering  the  Union  had  agreed 
to  abide  by  such  amendments  as  three-fourths  should 
make;  that  the  Southern  States  could  not  plead  disabil- 
ity to  vote,  since  no  one  was  denying  them  the  opportu- 
nity to  return  to  the  Union  and  express  themselves  on 
the  question;  and  that  all  States  not  voting  for  the 
amendment  were  in  fact  counted  as  being  against  it, 
inasmuch  as  no  action  at  all  was  equivalent  to  negative 
action. ^'^ 

The  question  as  to  the  validity  of  the  amendment  at 
the  time  of  Seward's  proclamation  of  adoption  hinges 
upon  the  competency  of  the  States  formerly  within  the 
Confederacy  to  pass  valid  resolutions  of  ratification.  In 
a  letter  to  the  Senate,  on  December  18,  1865,  President 
Johnson  explained  that  all  the  seceded  States  except 
Florida  and  Texas  had  reorganized  their  governments 
and  were  "yielding  obedience  to  the  laws  and  Govern- 
ment of  the  United  States."  ^®     He  then  enumerated 


"Constitution  of  the  United  States,  as  amended  to  January  1,  1923, 
(Annotated) :  Sen.  Doc.  No.  96,  67  Cong.,  2  sess..  p.  28.  See  also  George 
Ticknor  Curtis,  Comstitutional  History  of  the  United  States,  II,  653- 
654. 

"  Argument  of  Senator  Harlan :  Cong.  Globe,  38  Cong.,  1  sess., 
p.  1437. 

"Ann.  Cyc,  1866,  p.  131. 


EMANCIPATION  COMPLETED  399 

those  which  had  ratified  the  Thirteenth  Amendment.  If 
these  ratifications  were  to  be  accepted,  it  must  be  on  the 
ground  that  competent  governments  existed  within  the 
States  in  question  at  the  time  of  ratification.  It  is  mat- 
ter of  famihar  history  that  the  governments  in  these 
States  were  of  a  provisional  character,  created  by  con- 
ventions which  had  assembled  in  compliance  with  John- 
son's generous  plan  of  reconstruction,  and  that  the  radi- 
cals of  Congress,  rather  unfortunately,  took  the  matter 
out  of  Johnson's  hands  and  refused  recognition  to  these 
reorganized  governments. 

Without  pursuing  to  the  limit  all  the  legal  phases  of 
a  question  which,  after  all,  contains  many  matters  of 
idle  speculation,  it  may  sufiice  to  notice  the  various  in- 
gredients that  must  be  included  in  any  argument  which 
would  maintain  that  the  Thirteenth  Amendment  was 
valid  as  declared  by  Seward's  proclamation.  Such  an 
argument  affirms  the  following  points : 

1.  All  the  States,  including  those  which  seceded, 
should  be  reckoned  in  the  total,  three-fourths  of  which 
must  ratify. 

2.  The  ratifying  action  of  the  eight  seceded  States 
was  competent  and  legal. 

3.  The  Secretary  of  State's  proclamation,  declaring 
that  the  amendment  was  in  force  on  December  18,  1865, 
was  valid.  (No  resolution  by  Congress,  for  instance, 
was  necessary.) 

4.  The  subsequent  refusal  of  Congress  to  recognize 
"Johnson's  reorganized  States"  did  not  invalidate  the 
amendment. 

It  is  of  course  a  well-known  fact  that,  at  the  moment 
when  the  amendment  was  proclaimed  as  ratified  by  the 
votes  of  various  States  of  the  former  Confederacy,  there 
were  many  radicals  in  Congress  declaring  that  there 


400  THE  CONSTITUTION  UNDER  LINCOLN 

were  no  such  States  in  existence. ^^  The  plan  of  such 
radicals  as  to  the  amendment  was  to  leave  the  "rebel" 
States  out  of  the  count  in  estimating  the  total,  three- 
fourths  of  which  would  be  necessary  to  declare  the 
amendment  in  force.*'*'  Such  a  plan  had,  perhaps,  more 
of  consistency  than  that  which  Congress  actually  adopted 
— that  is,  "quietly  assenting"  ®^  to  Seward's  proclama- 
tion which  assumed  that  most  of  the  seceded  States  were 
back  in  the  Union,  and  then  denying  to  such  States  rep- 
resentation in  Congress  and  otherwise  holding  them  out 
of  the  Union  for  a  period  of  years.^^  Inconsistencies  and 
legal  fictions  offered  no  obstacle  in  that  period  when,  for 
instance,  Virginia  was  permitted  representation  in  the 
Senate  while  kept  out  of  the  electoral  College,  and  a 


"Concerning  these  radicals  Edward  Bates  thus  wrote:  "...  in  de- 
bate in  H  of  R  old  Thad.  [Stevens]  amidst  other  ravings  declared  that 
'The  State  of  Tennessee  is  not  known  to  this  House  or  to  Congress!' 
A  very  ignorant  House,  it  would  seem — ignorant  alike  of  the  Con- 
stitution &  of  Geography.  .  .  .  And  in  the  Senate  Mr.  Howard  of 
Michigan  refused  to  'recognize  them  as  States'  I  I  And  so  it  seems  that 
they  are  not  States  in  the  Union,  yet  they  can  enact  a  Constitution 
for  the  United  States!  Are  those  men  mad?"  (MS.  Diary  of  Ed- 
ward Bates,  Dec.  12  and  Dec.  21,  1865.) 

""Strangely  enough,  Nicolay  and  Hay  speak  of  the  Thirteenth  Amend- 
ment as  having  been  "ratified  by  21  out  of  the  26  States."  (Nicolay 
and  Hay,  Works,  X,  352,  n.) 

"Rhodes,  History  oj  the  United  States,  V,  554;  Blaine,  Twenty 
Years  of  Congress,  II,  140. 

"Two  weeks  before  Seward's  proclamation  of  December  18,  1865, 
Senator  Sumner  proposed  a  joint  resolution  declaring  that  sundry 
States  "by  reason  of  rebellion  were  without  legislatures,"  and  that  it 
belonged  to  Congress  to  determine  when  the  process  of  constitutional 
amendment  is  complete.  The  question  of  counting  State  resolutions 
of  ratification  was,  in  his  opinion,  bound  up  with  the  problem  of  re- 
construction, which  rested  with  Congress.  On  these  premises  his 
resolution  declared  "that  the  amendment  abolishing  slavery  has  be- 
come and  is  a  part  of  the  Constitution  of  the  United  States."  This 
eccentric  resolution  (by  which  Congress  would  have  assumed  a  merely 
ministerial  function  belonging  to  the  Secretary  of  State)  was  not 
passed.     {Cong.  Globe,  Dec.  4,  1865,  39  Cong.,  1  sess.,  p.  2.) 


EMANCIPATION  COMPLETED  401 

Vice-President  was  declared  elected  from  a  State  which 
was  excluded  from  the  electoral  count.*'' 

As  to  the  main  question  in  the  case  of  the  Thirteenth 
Amendment,  enough  States  ultimately  ratified  it  to  re- 
move all  doubts  as  to  its  validity;  and,  historically, 
this  validity  has  dated  from  Seward's  proclamation  of 
December  18,  1865.«* 

VII 

Emancipation  was  thus  effected  in  the  United  States 
without  any  compensation  to  the  slaveholders.  It  may 
be  pertinent  to  recall  in  this  connection  that  the  English 
Parliament,  in  passing  the  emancipation  act  of  1833,^^ 
granted  the  amount  of  £20,000,000  as  compensation  for 
what  was  regarded  as  the  "destruction"  of  slave  prop- 
erty. In  addition  to  the  value  of  the  slaves  themselves, 
it  was  explained  in  Parliament  that  other  matters  should 
be  considered,  such  as  the  value  of  the  land  which  was 
principally  maintained  by  slave  labor,  and  the  prospec- 
tive value  of  children  to  be  born.  As  a  matter  of  fact, 
the  actual  amount  of  compensation  granted  was  hit 
upon  in  a  sort  of  dicker  with  the  West  Indian  proprie- 

"In  February,  1865,  Congress  declared  that  Tennessee  was  not  en- 
titled to  representation  in  the  electoral  college  which  chose  the  Presi- 
dent and  Vice-President.  In  this  election  Andrew  Johnson,  a  citizen 
of  Tennessee,  was  elected  Vice-President.  {Cong.  Globe,  38  Cong., 
2  sess.,  appendix,  p.  159.) 

"  In  construing  the  Thirteenth  Amendment  the  courts  have  held  that 
slavery  and  involuntary  servitude  in  general  (not  merely  in  the  case 
of  negroes)  is  prohibited;  that  laws  establishing  peonage  are  uncon- 
stitutional; that  a  law  merely  recognizing  a  distinction  between  the 
races  is  not  invalid;  that  it  is  unconstitutional  for  Congress  to  prohibit 
such  a  distinction  in  public  conveyances;  that  all  within  the  jurisdic- 
tion of  the  National  Government,  as  well  as  within  the  States,  are  cov- 
ered by  the  amendment;  and  that  the  Selective  Service  Act  of  1917  did 
not  establish  involuntary  servitude.  For  the  citations,  see  Sen.  Doc. 
No.  96,  67  Cong.,  2  sess.,  pp.  621-623. 

**  [British]  Annual  Register,  1883,  pp.  197  et  seq. 


\^ 


402  THE  CONSTITUTION  UNDER  LINCOLN 

tors;  but  the  fundamental  fact  is  that  the  English 
Government  considered  that  in  abolishing  slavery  there 
were  property  interests  involved  which  demanded  com- 
pensation. 

As  we  have  seen,  Lincoln  thought  so  too;  and  Con- 
gress accepted  the  principle  of  compensation  in  a  resolu- 
tion pledging  pecuniary  aid  to  those  States  which  should 
liberate  their  slaves.  An  interesting  question  arises  as 
to  whether  this  pledge  of  support,  made  in  1862,  was 
binding  or  applicable  in  1865  when  nation-wide  emanci- 
pation was  accomplished.  Those  border  States  which 
adopted  emancipation  prior  to  the  ratification  of  the 
Thirteenth  Amendment  certainly  believed  that  they 
were  entitled  to  compensation  from  the  Federal  Gov- 
ernment, in  spite  of  the  rejection  of  the  proposal  by 
their  own  representatives.  As  Governor  Swann  of 
Maryland  pointed  out  in  January,  1865,  "the  first  and 
only  authorized  response  of  the  people  of  Maryland  to 
the  offer  of  Congress  was  the  abolition  of  slavery  in 
accordance  with  the  terms  of  the  resolution."  ^^  And 
Bradford,  the  outgoing  Governor,  in  referring  to  the 
President's  recommendation  concerning  pecuniary  aid 
and  the  joint  resolution  of  Congress  on  the  subject,  de- 
clared: "If  there  can  be  any  meaning  in  the  language 
quoted,  it  expressed  a  promise  to  that  effect,  and  if  any 
State  can  conscientiously  claim  a  fulfillment  of  that 
promise,  Maryland  can."°'^ 

The  Maryland  legislature  in  February,  1865,  created 
a  committee  to  go  to  Washington  and  confer  with  the 
President  to  see  whether  influence  might  be  brought  to 
bear  to  induce  Congress  to  give  aid  to  the  State.  In 
taking  this  action  the  legislature,  in  a  series  of  whereas 
clauses,  put  it  on  record  that  the  offer  of  aid  had  been 

**  limine  Journal  and  Documents,  Maryland,  1865,  Document  C. 
"  Ibid.,  Document  A. 


EMANCIPATION  COMPLETED  403 

used  to  induce  voters  to  support  abolition  in  the  State, 
and  that  the  people  of  Maryland,  "acting  under"  the 
President's  recommendation  and  the  offer  of  Congress, 
had  in  fact  abolished  slavery. ^^ 

If  Maryland  should  claim  such  compensation,  Mis- 
souri could  make  a  similar  claim,  while  even  in  Ken- 
tucky, where  the  abolition  of  slavery  was  resisted  to  the 
last,  the  possibility  of  compensation  seems  to  have  been 
envisaged;  for  that  State,  in  1866,  passed  a  law  to  obtain 
and  preserve  evidence  as  to  slave  property  of  which  the 
citizens  of  the  State  had  been  deprived. ^^ 

After  the  war,  however,  the  matter  of  compensation 
for  emancipated  slaves  was  given  little  thought.  Presi- 
dent Lincoln,  as  late  as  February  of  1865,  still  favored 
compensation,  even  to  the  States  of  the  South  at  the 
close  of  the  war;  but,  even  if  he  had  lived,  it  is  doubtful 
whether  this  object  could  have  been  accomplished. ''^ 
The  joint  resolution  of  Congress  expressing  a  willingness 
in  1862  to  cooperate  with  any  State  that  would  free  its 
slaves,  represents  simply  a  stage  in  the  rapidly  develop- 
ing policy  regarding  abolition.  It  was  perhaps  not  felt 
that  the  offer  should  hold  good  indefinitely,  since  a  cer- 

"  Journal  of  the  Proceedings  of  the  House  of  Delegates,  Maryland, 
1865,  pp.  190,  336. 

•  "Whereas  the  people  of  Kentucky  ...  by  proclamations,  military 
orders,  and  the  Thirteenth  Amendment  to  the  Federal  Constitution, 
[had]  been  deprived  of  their  slave  property  without  compensation" 
etc.,  it  was  enacted  that  persons  so  deprived  should  offer  proof  before 
the  county  courts,  and  the  records  were  to  be  filed.  ("Act  to  preserve 
evidence  of  claims  to  slave  property  in  Kentucky,"  February'  17,  1866: 
Laws  of  Ky.,  1865-1866,  p.  64.) 

"*At  the  Hampton  Roads  Conference  Lincoln  is  reported  to  have 
said  that  he  "would  be  willing  to  be  taxed  to  remunerate  the  Southern 
people  for  their  slaves";  that  "he  believed  the  people  of  the  North 
were  as  responsible  for  slavery-  as  the  people  of  the  South";  and  that  he 
would  be  in  favor  "of  the  Government  paying  a  fair  indemnity  for  the 
loss  to  the  owners."  (Xicolay  and  Hay,  Lincoln,  X,  124.)  The  Presi- 
dent's statements  are  thus  reported  by  Alexander  H.  Stephens,  one  of 
the  Southern  commissioners  at  the  conference. 


^ 


404  THE  CONSTITUTION  UNDER  LINCOLN 

tain  amount  of  promptness  on  the  part  of  the  States  was 
desired  in  order  to  infiuence  the  outcome  of  the  war.  At 
a  time  when  Lincoln  was  laboring  hard  to  put  the 
scheme  into  practical  effect,  the  border-State  Congress- 
men and  Senators  contributed  their  part  to  the  burial 
of  the  project. 

In  1865  the  question  of  abolition  had  acquired  a  dif- 
ferent horizon;  for  a  new  policy,  namely,  abolition  by 
constitutional  amendment,  had  been  put  forth.  The 
amendment  was  a  mandate  to  the  National  Govern- 
ment, not  an  act  of  that  government;  and  it  was  very 
different  from  State  action,  for  which  alone  compensa- 
tion had  been  promised.  Under  these  circumstances,  the 
obligation,  if  such  existed,  toward  those  few  States  whose 
independent  abolition  of  slavery  occurred  just  before  the 
adoption  of  the  nation-wide  amendment,  was  lost  sight 
of.  Had  slavery  been  abolished  in  time  of  peace,  it  is 
not  unlikely  that  compensation  might  have  been  pro- 
vided, for  the  arguments  and  precedents  favoring  such 
compensation  were  sound;  but  the  war  mind  of  1865 
gave  little  heed  to  the  property  rights  of  slaveholders.'^ 

"The    Fourteenth    Amendment   of   the    Constitution    provides    that 
V      "neither  the  United  States  nor  any  State  shall  assume  or  pay  .  .  .  any 
claim  for  the  loss  or  emancipation  of  any  slave." 


CHAPTER  XVII 

STATE    AND    FEDERAL    RELATIONS    DURING   THE    CIVIL    WAR 

I.  Great  importance  of  State  action  during  the  war 

II.  The  question  of  State  "neutrality" 

III.  Military  problems  of  the  State  and  nation 

IV.  Federal  relationships  of  the  State  governors 
V.  Financial  questions 

VI.   Jurisdictional  conflicts  engendered  by  action  of  State 
courts 


"It  is  a  fact  of  our  national  history  that  the  Civil  War  put 
the  separate  States  definitely  and  irrevocably  in  subordination 
to  the  central  government." — H.  G.  Pearson,  Life  of  John  A. 
Andrew,  II,  122. 

This  quotation  exemplifies  a  point  of  view  which  is 
quite  general  among  historians.  It  is  customary  to  em- 
phasize the  ''presidential  dictatorship"  and  the  excessive 
tendency  toward  centralization  of  power  at  Washington 
as  fundamental  facts  in  treating  the  history  of  the  Civil 
War.  So  much  has  been  said  concerning  this  national- 
izing tendency  that  the  other  side  of  the  actual  situation 
obtaining  during  the  war  has  been  obscured.  It  is  not 
generally  realized  how  far  the  National  Government  did 
act  by  and  through  the  States. 

Taking  the  war  as  a  whole,  one  does  find  a  certain 
gathering-in  of  governmental  activities  by  the  Federal 
authorities.  But  early  in  the  war — in  general  until  the 
spring  of  1863 — things  were  done,  or  attempted  to  be 

405 


406  THE  CONSTITUTION  UNDER  LINCOLN 

done,  "by  States."  In  the  field  of  finance,  we  have  the 
"direct  tax"  for  which  quotas  were  levied  upon  the 
States;  and  the  actual  raising  of  the  tax  was  to  be  accom- 
plished by  the  States  after  the  fashion  of  Revolutionary 
days.  Even  in  the  vitally  important  domain  of  military 
affairs,  the  expanding  of  the  army  was  primarily  "by 
States,"  as  seen  in  the  Militia  Act  of  1862,  and  in  the 
drafts  made  during  that  year. 

The  national  administration,  especially  in  the  early 
part  of  the  war,  showed  a  scrupulous  regard  for  State 
functions,  this  attitude  being  carried  even  to  the  point 
of  hampering  the  Government.  On  the  other  side,  the 
States  were  jealous  of  retaining  important  activities; 
and  their  action  frequently  encroached  upon  Federal 
jurisdiction,  as  in  the  case  of  State  trespass  suits  or 
habeas  corpus  proceedings  instituted  against  Federal 
officers. 

It  was  far  from  true  that  the  Government  at  Wash- 
ington deliberately  used  the  war  as  an  opportunity  to 
increase  its  power.  Lincoln's  Cabinet  contained  men 
who  stoutly  upheld  State  rights;  and  Lincoln  himself, 
both  because  of  his  clear  perception  of  constitutional 
questions  and  because  of  his  anxiety  to  avoid  offending 
border-State  sentiment,  showed  a  wholesome  regard  for 
the  proper  authority  of  the  States.  What  happened 
was  rather  that,  as  the  war  progressed,  more  and  more 
responsibility  was  gradually  and  reluctantly  assumed  by 
the  Federal  Government  because  of  the  necessities  aris- 
ing out  of  State  jealousy  and  administrative  deadlock. 
The  nationalizing  laws  of  the  Civil  War  period,  such  as 
the  Conscription  Act  and  the  act  creating  the  system 
of  national  banks,  begin  with  the  year  1863.  It  was  not 
until  State  action  had  proved  a  failure  following  two 
years  of  actual  practice — sometimes  because  of  enthu- 
siasm for  the  war,  and  sometimes  because  of  opposition 


STATE  AND  FEDERAL  RELATIONS       407 

to  it — that  the  National  Government  was  drawn  into 
the  performance  of  functions  without  which  the  national 
cause  would  have  failed.  While  recognizing  the  fact  of 
nationalization  as  an  incident  of  the  war,  we  should 
avoid  the  mistake  of  attributing  this  to  a  persistent  and 
deliberate  purpose. 

II 

One  of  the  strange  anomalies  of  the  war  was  Ken- 
tucky's attempted  poHcy  of  neutrality.  Without  reciting 
the  details  of  this  interesting  episode  it  will  be  sufficient 
to  recall  that  a  majority  of  the  people  of  Kentucky  were 
probably  friendly  to  the  States  of  the  Confederacy,  and, 
while  devoted  to  the  Union,  were  yet  believers  in  the 
principle  of  State  sovereignty  and  the  right  of  secession. 
Had  a  convention  been  called  in  January,  1861,  as  Gov- 
ernor Magoffin  desired,  the  State  would  probably  have 
seceded.  When  Lincoln  issued  his  call  for  troops  on 
April  15,  1861,  the  Governor  sent  an  emphatic  refusal; 
and,  shortly  after,  the  policy  of  neutrality  was  set  forth 
in  a  resolution  passed  by  the  State  senate  which  declared 
that  Kentucky  would  neither  sever  connection  with  the 
National  Government  nor  take  up  arms  for  either  party, 
but  would  "arm  herself  for  the  one  purpose  of  preserving 
tranquillity  and  peace  within  her  own  borders."  ^ 

It  is  outside  the  scope  of  this  book  to  examine  the 
purposes  or  conditions  which  prompted  this  neutral  atti- 
tude. Sometimes  it  has  been  denounced  as  an  anti- 
Union  measure,  while  again  it  has  been  referred  to  as  a 
"trick"  by  which  the  Union  men  saved  the  day  in  Ken- 
tucky at  a  time  when  no  other  device  could  have  pre- 

^Ky.  House  Jour.,  May  24,  1861,  p.  182;  Ky.  Sen.  Jour.,  May  24,  1861, 
pp.  143-144;  W.  P.  Shortridge,  in  Miss.  Vail.  Hist.  Rev.,  Mar.,  1923;  A. 
C.  Quisenberry,  in  Ky.  State  Hist.  Soc.  Register,  XV,  9  (Jan.,  1917) ; 
W.  D.  Foulke,  Ldfe  of  Oliver  P.  Morton,  I,  Ch.  xi;  Nicolay  and  Hay, 
Lincoln,  IV,  Ch.  xii. 


408  THE  CONSTITUTION  UNDER  LINCOLN 

vented  secession.  It  is  undoubtedly  true  that  good 
Union  men  supported  the  neutrality  policy,  and  it  has 
even  been  contended  that  Lincoln  was  its  originator. 
The  national  administration  showed  a  disposition  to 
respect  this  neutral  position,  at  least  up  to  a  certain 
point,  but  the  plan  quickly  broke  down  because  of  its 
utterly  impracticable  character. 

What  concerns  us  more  particularly  here  is  to  note 
the  legal  implications  that  are  wrapped  up  in  this  neu- 
tral attitude.  Does  not  the  power  of  declaring  neutrality 
presuppose  independence?  Does  it  not  involve  the  war- 
making  power?  But  the  power  of  making  war  is  one  of 
the  functions  which  the  States  renounced  and  gave  over 
to  the  National  Government  by  the  plain  terms  of  the 
Constitution.  For  the  purpose  of  making  war  the  nation 
is  a  unit.  This  does  not  mean  that  State  action  is  dic- 
tated from  above  so  much  as  that  for  federal  purposes 
the  people  act,  not  by  States,  but  through  the  National 
Government  which  they  create  and  control.  War  is  a 
federal  function  par  excelleiice.  It  may  be  practicable 
that  certain  things  be  done  by  States,  but  war-making 
is  not  one  of  them.  A  war  in  which  only  a  portion  of  the 
nation  takes  part,  or  in  which  some  States  go  to  war 
while  others  are  "neutral,"  is  wholly  inconsistent  with 
the  peculiar  federal  system  as  provided  by  the  American 
Constitution. 

As  Lincoln  showed,  this  so-called  "neutrality"  would 
really  amount  to  taking  sides.  It  would  be  disunion 
completed,  this  erecting  of  an  impassable  wall  of  separa- 
tion between  the  Unionist  and  the  secessionist  forces — 
yet  not  quite  impassable,  "for  under  the  guise  of  neu- 
trality it  would  tie  the  hands  of  Union  men  and 
freely  pass  supplies  from  among  them  to  the  insurrec- 
tionists, which  it  could  not  do  as  an  open  enemy.  .  .  . 
It  would  do  for  the  disunionists  that  which  .  .  .  they 


STATE  AND  FEDERAL  RELATIONS       409 

most  desire — feed  them  well,  and  give  them  disunion 
without  a  struggle  of  their  own."  ^ 

It  is  only  fair  to  say  that  many  who  promoted  the 
policy  of  neutrality  thought  differently,  and  conceived  of 
their  measure  as  tending  toward  peace,  mediation,  and 
ultimate  reunion  without  a  serious  war;  and  there  is 
much  to  be  said  for  the  patriotic  purpose  which  inspired 
their  course.  When  the  matter  is  regarded  as  a  problem 
of  constitutional  interpretation,  however,  many  difficul- 
ties appear.  Our  States  are  not  independent,  separate 
nations.  They  are  parts  of  a  union;  and,  in  their  char- 
acter as  such,  certain  obligations  and  limitations  are  in- 
curred, one  of  which  is  that  the  power  of  war  (which 
includes  the  power  of  neutrality)  has  been  intrusted  to 
the  central  government.  To  insist  upon  separate  State 
action  which  would  keep  one  of  the  States  "neutral"  in 
a  war  to  preserve  the  Union  is  to  go  the  whole  way  with 
the  theory  of  secession.  There  is  no  such  middle  ground 
as  the  action  of  Kentucky  would  presuppose. 

Analogous  to  the  case  of  Kentucky's  "neutrality"  is 
the  action  of  Maryland  authorities  in  seeking  to  obstruct 
the  passage  of  Federal  troops  over  the  territory  of  the 
State.  In  these  matters  of  sovereignty  which  belonged 
to  the  United  States,  the  Federal  authority  must  be,  as 
Marshall  showed,  supreme.  When  the  States  perform 
their  rightful  functions,  they  should  be  unmolested;  and 
it  is  equally  true  that  the  Federal  Government  must  not 
be  impeded  by  State  interference  when  it  acts  within  its 
proper  domain.  Interference  in  the  movement  of  the 
nation's  armies  would  be  as  truly  unwarranted  as  ob- 
structing the  nation's  business  by  means  of  State  taxa- 
tion, which  was  so  convincingly  denounced  by  John 
Marshall.     The   language  which  he   employed  in   dis- 

*  Nicolay  and  Hay,  Works,  VI,  307. 


410  THE  CONSTITUTION  UNDER  LINCOLN 

allowing  the  tax  imposed  by  Maryland  upon  the  L^nited 
States  Bank  ^  could  be  used  with  equal  force  in  dealing 
with  the  contemplated  attempt  by  the  same  State  to 
stop  the  national  forces  on  a  mission  that  was  vital  to 
the  preservation  of  the  nation. 


m 

The  most  numerous  as  well  as  the  most  serious  prob- 
lems of  adjustment  between  the  Federal  and  State  gov- 
ernments arose  in  the  sphere  of  military  affairs.^  The 
militia  is  at  once  a  national  and  a  State  institution.  In 
its  main  features,  the  division  of  function  touching  the 
militia  was  about  as  follows  during  the  Civil  War :  Con- 
gress defined  what  constituted  the  enrolled  militia,  pro- 
vided the  armament,  prescribed  the  drill  and  tactical 
organization,  and  had  the  power  of  discipline  (i.  e.,  the 
punishing  of  offenses  by  courts-martial)  over  such  part 
of  the  militia  as  was  actually  employed  in  Federal 
service.  The  State  governments  recruited  and  raised  the 
force   and   paid   the   expenses   thereof   while   in   State 

*  M'Culloch  vs.  Md,  4  Wheaton  316. 

*The  activities  of  Robert  Dale  Owen  as  "State  Agent  for  Indiana" 
early  in  the  Civil  War  illustrate  the  manner  in  which  the  States  as- 
Bumed  control  of  military  matters.  Acting  for  Governor  Morton,  he 
was  energetic  in  purchasing  rifles,  sabers  and  revolvers;  shipping  arms 
from  New  York  to  Fortress  Monroe  as  well  as  to  Indianapolis;  pro- 
curing greatcoats,  blankets  and  equipment  for  the  soldiers;  visiting 
various  Indiana  regiments  in  the  field;  making  contracts  for  which  the 
Federal  Government  paid;  and  doing  many  things  which  transcended 
the  bounds  of  State  functions.  On  one  occasion  he  wrote  to  Morton: 
"I  fear  that  if  you  trust  wholly  to  the  Government  to  send  you  what 
more  guns  we  may  need,  you  will  be  likely  to  get  trash.  I  hear 
very  poor  accounts  of  the  purchases  made  by  the  Government  agent 
in  Europe."  (Owen  to  Morton,  Dec.  2,  1861.)  One  of  the  objects  for 
which  Owen  exerted  himself  was  to  have  "the  Arsenal"  at  Indianapolis 
continued  when  the  interests  of  the  Federal  Government  seemed  to 
require  its  discontinuance.  (Morton  Correspondence,  [State  Archives 
of  Indiana,  Indianapolis],  passim.) 


STATE  AND  FEDERAL  RELATIONS       411 

service.  The  State  governor  appointed  the  officers,  and 
was  the  Commander-in-Chief  of  the  militia  as  a  State  in- 
stitution. The  control  of  the  militia  while  in  State 
service  rested  with  the  States.  It  was  by  State  authority 
that  the  militia  was  drilled,  governed,  and  commanded. 
Though  the  drill  was  prescribed  by  Congress,  it  was  con- 
ducted by  the  State,  and  the  discipline  was  normally 
under  State  authority.^ 

An  important  national  power  regarding  the  militia  has 
always  been  that  of  calling  it  into  Federal  service.  When 
so  called  out,  the  militia  largely  loses  its  character  as  a 
State  institution.  It  is  under  Federal  discipline,  and  is 
subject  to  the  orders  of  the  President  as  Commander-in- 
Chief.  Here  is  an  example,  then,  where  State-appointed 
officers  are  commanded  by  the  President.  Moreover,  the 
President  is  the  judge  of  his  own  powers  in  this  respect. 
It  is  within  the  President's  discretion  to  determine  not 
alone  the  occasion  for  calling  the  militia  into  national 
service,  but  also  the  strength  and  composition  of  the 
State  quotas.  The  President's  power  of  issuing  regula- 
tions as  to  the  manner  of  calling  out  the  militia  em- 
braces a  vast  sweep  of  authority,  and  in  another  chapter 
we  have  noted  that  this  was  even  extended  during  the 
Civil  War  to  include  the  power  of  conscription.^ 

In  the  years  1861  and  1862  it  may  be  truly  said  that 
the  nation's  forces  were  largely  raised,  and  even  to  a 
certain  extent  equipped,  paid  and  transported,  by  State 
action.  President  Lincoln's  proclamation  of  April  15, 
1861,  was  a  calling  forth  of  "the  militia  of  the  several 
States."  "^  Of  course,  the  States  raised  these  troops.  Aside 
from   this  and   other   occasions  when   the   militia  was 

°  Federal   and   State   functions   concerning   the   militia   are   discussed 
in  G.  B.  Davis,  Military  Law,  Ch.  v.    And  see  supra,  pp.  241-242. 
"Supra,  pp.  245-247,  252-255. 
*  U.  S.  Stat,  at  Large,  XII,  1258. 


412  THE  CONSTITUTION  UNDER  LINCOLN 

called,  the  only  other  methods  employed  for  raising  na- 
tional forces  during  the  first  two  years  of  the  war  were 
the  slight  increase  of  the  regular  army  and  the  recruit- 
ing of  large  numbers  of  "U.  S.  Volunteers."  As  to  the 
"volunteers,"  which  constituted  the  bulk  of  the  Union 
army,  State  action  was  of  great  importance.  The  gov- 
ernors of  the  States  commonly  directed  the  recruiting  of 
the  volunteer  regiments  (though  they  did  not  have  the 
exclusive  power  of  doing  so),  and  the  governors  commis- 
sioned the  staff,  field,  and  company  officers  thereof.^  By 
the  President's  regulations,  which  were  intended  to  carry 
out  the  purposes  of  the  Militia  Act  of  1862,  much  power 
was  given  to  the  governors,  who  were  in  effect  made  the 
enforcing  agents  in  executing  this  Federal  measure. 
Under  these  regulations  it  was  made  the  duty  of  the 
governors  to  carry  out  the  details  of  the  draft  as  pre- 
scribed by  the  War  Department  at  Washington." 

It  wall  aid  us  to  appreciate  what  the  State  govern- 
ments did  in  providing  Federal  troops  if  we  remember 
that  at  the  beginning  of  July,  1861,  when  the  first  war 
Congress  assembled,  the  Union  forces  exclusive  of  the 
regular  army  numbered  about  260,000  men.^^  These 
men,  partly  militia  and  partly  United  States  volunteers, 

'Ibid.,  XII,  269;  Pearson,  Life  oj  J.  A.  Andrew,  I,  Ch.  viii.  State 
action  in  the  selection  of  officers  for  the  United  States  Volunteers  did 
not  end  with  the  appointment  of  the  regimental  officers  by  the  governor; 
for  in  the  appointment  of  the  generals  the  President  recognized  a 
sort  of  "right  of  nomination"  on  the  part  of  the  Congressmen  and 
Senators  from  the  State.  Senator  Browning  of  Illinois  made  the  fol- 
lowing note  in  his  diary  which  illustrates  this  fact:  "Went  to  Trum- 
bull's rooms  to  meet  the  111.  delegation  and  agree  upon  Brig.  Gen'ls  for 
our  State.  I  was  for  Prentiss,  McClernaud,  Payne,  Richardson,  Palmer, 
Grant,  and  Stokes."  (MS.  Diary  of  Or%ille  H.  Browning,  July  27, 
1S61.) 

'Supra,  pp.  252-253. 

"The  Secretary  of  War  reported  the  three  months'  militia  as  80,000 
and  the  United  States  volunteers  as  188,000.  (Report  of  the  Sec.  of 
War,  July  1,  1861.    Sen.  Ex.  Doc.  No.  1,  37  Cong.,  1  sess.,  p.  21.) 


STATE  AND  FEDERAL  RELATIONS       413 

were  recruited  and  brought  together  through  the  agency 
of  the  State  governments.  In  the  case  of  the  volunteers, 
some  regiments  were  even  raised  in  advance  of  a  Federal 
call. 

A  study  of  the  activities  of  such  governors  as  Mor- 
ton ^^  of  Indiana  and  Andrew  of  Massachusetts  ^^  reveals 
the  vast  importance  of  the  functions  which  devolved 
upon  the  State  executives  in  the  early  part  of  the  war.^^ 
Andrew  at  Boston  and  Morton  at  Indianapolis  were  war 
ministers  as  truly  as  Cameron  at  Washington.  In  fact 
they  far  outran  the  lagging  efforts  of  Cameron,  and  their 
excellent  work  was  hampered  by  the  manner  in  which 
the  War  Department  dampened  recruiting  ardor  or 
delayed  in  accepting  the  regiments  offered.^^ 

"W.  H.  H.  Terrell,  Report  of  the  Adjutant-General  oj  Ind.,  Vol.  I, 
passim;  Fouike,  Life  of  Oliver  P.  Morton. 

"H.  G.  Pearson,  Life  of  John  A.  Andrew. 

"On  July  12,  1861,  Senator  Browning  of  Illinois,  after  visiting  the 
encampment  of  Rhode  Island  volunteers  at  Washington,  wrote  "... 
the  whole  [is]  apparently  under  the  direction  of  Governor  Sprague  of 
Rhode  Island  who  is  with  them  in  camp."  (MS.  Diary  of  Orville  H. 
Browning.)  Early  in  1862  Governor  Tod  of  Ohio  wrote  to  Stanton 
asking  four  questions:  (1)  What  control  had  the  governor  over  State 
troops,  in  camp  or  in  the  field,  after  they  had  been  mustered  into  the 
service  of  the  United  States?  (2)  What  were  his  duties  in  the  pro- 
curing or  issuing  of  military  supplies?  (3)  Would  the  Federal  govern- 
ment refund  to  the  State  "all  the  money  expended  directly  and  in- 
directly in  the  raising,  equipping,  sustaining  and  mustering  of  the 
troops?"  (4)  What  control  did  the  governor  have  over  military  pris- 
oners sent  to  the  State  for  safe  keeping?  The  fact  that  such  a  letter 
could  be  written  by  a  governor  to  the  Secretary  of  War  nine  months 
after  the  firing  at  Sumter,  shows  both  the  extent  of  the  governor's  ac- 
tivities and  the  indefiniteness  of  the  relationships  involved.  (Tod  to 
Stanton,  Jan.  28,  1862:     Stanton  Papers,  II,  No.  50513.) 

"  While  Yates  in  Illinois  was  working  energetically  to  raise  United 
States  regiments,  expecting  that  the  Government  would  accept  all 
that  were  raised,  Cameron  sent  word  to  him :  "Let  me  earnestly  recom- 
mend to  you  ...  to  call  for  no  more  than  twelve  regiments,  of  which 
six  only  are  to  serve  for  three  years  or  during  the  war,  and  if  more 
are  already  called  for,  to  reduce  the  number  by  discharge."  (Report 
of  the  Adjutant-General  of  III.,  I,  11 ;  I.  O.  Foster,  "Relation  of  Illi- 
nois to  the  Federal  Government  during  the  Civil  War"  [MS.  disserta- 


414  THE  CONSTITUTION  UNDER  LINCOLN 

When  orders  from  Washington  failed  to  arrive, 
Andrew  went  ahead  in  the  absence  of  orders.  To  a  great 
extent  he,  and  other  governors  of  his  stamp,  bore  the 
immediate  burden  of  the  emergency.  Andrew  directed 
the  recruiting  of  the  early  jMassachusetts  regiments,  the 
appointment  of  the  officers,  the  examination  and  equip- 
ment of  the  troops,  the  chartering  of  steamers  and  rail- 
roads for  their  transportation,  and  the  raising  of  emer- 
gency funds  by  which  the  first  bills  were  paid.  For  a 
time,  since  Massachusetts  had  prematurely  sent  forward 
four  thousand  men,  the  State  had  to  maintain  them  in 
the  field,  in  a  quasi-hostile  territory  four  hundred  and 
fifty  miles  distant.  In  all  this  rush  of  patriotic  activity 
there  was  no  time  to  quibble  about  authority,  and  men 
assumed  responsibility  in  full  confidence  that  their 
actions  would  later  receive  ratification  and  support. 

Unfortunately,  but  inevitably,  confusion  and  friction 
arose  between  State  and  Federal  authority  in  these  mili- 
tary matters.  Instances  of  such  lack  of  adjustment  were 
very  numerous,  but  we  must  be  content  to  note  a  few 
examples.  Governor  Andrew,  for  instance,  sought  to 
place  a  contract  for  building  a  monitor  for  Massachu- 
setts; but  the  Navy  and  Ordnance  officers  loudly  pro- 
tested on  the  ground  that  the  L'^nited  States  needed  all 
the  ironclads  and  heavy  cannon  that  the  country  was  pro- 
ducing. The  governor  then  labored  hard  to  have  an 
ironclad  detailed  to  protect  Boston  harbor;  but  Lincoln 
replied  that  the  alarm  was  baseless  and  that  if  each 
State  on  the  seaboard  were  seized  with  a  similar  panic 
and  the  Government  attempted  to  satisfy  them  all,  the 
result  would  be  such  a  diversion  of  our  resources  from  the 

tion,  University  of  Illinois].)  Governor  Morton  insisted  upon  furnish- 
ing six  regiments  though  the  call  was  for  four.  (Foulke,  Morton,  I, 
128.)  Cameron  accepted  only  three  of  the  ten  regiments  offered  by 
Ohio,  and  a  similar  situation  existed  with  regard  to  Massachusetts  and 
other  States.     (Pearson,  Aiidreiv,  I,  224,  225.) 


STATE  AND  FEDERAL  RELATIONS       415 

main  object  of  attacking  the  enemy  that  we  might  as 
well  give  up  the  war.^^ 

The  differences  between  General  Benjamin  F.  Butler 
and  Governor  Andrew  concerning  the  recruiting  of 
United  States  volunteers  developed  a  heated  contro- 
versy and  produced  a  veritable  deadlock  between  the 
State  and  Federal  governments  which  was  only  relieved' 
by  the  timely  resignation  of  the  Secretary  of  War,^^  The 
incident  grew  out  of  the  plan,  legalized  by  Congress,  by, 
which  the  State  governors  raised  regiments  of  United 
States  volunteers  and  commissioned  the  officers.  But  not 
infrequently  the  President  conflicted  with  this  power 
by  authorizing  individuals  to  raise  volunteers.  General 
Butler,  urging  that  there  ought  to  be  no  discrimination 
against  loyal  Democrats,  and  alleging  that  the  Massachu- 
setts governor  would  not  commission  political  oppo- 
nents, obtained  an  order  under  the  authority  of  the 
President,  authorizing  him  to  raise  six  regiments  in  the 
New  England  States.  According  to  this  order,  Butler 
was  to  "fit  out  and  prepare  such  troops  as  he  [might] 
judge  fit"  for  a  contemplated  expedition  down  the 
eastern  shore  of  Maryland  and  Virginia  to  Cape  Charles. 
When  Secretary  Cameron  wired  the  New  England  gov- 
ernors to  give  their  approval  to  this  scheme,  Andrew 
refused  consent.  The  wavering  War  Secretary  then 
issued  an  order  that  the  regiments  should  be  recruited 
under  the  authority  of  the  governors. 

Deadlock  resulted  when  Andrew  refused  to  commis- 
sion Butler's  list  of  officers;  and,  by  pressure,  Butler 
brought  about  the  issuance  of  a  remarkable  order  from 
Washington  creating  the  ''Department  of  New  Eng- 
land" and  placing  six  States  under  his  own  command 
for  the  purpose  of  recruiting  these  regiments.     Com- 

"  Pearson,  Andrew,  II,  128-130.  ^  Ibid.,  C.  viii. 


416  THE  CONSTITUTION  UNDER  LINCOLN 

missions  for  Butler's  officers  were  announced  by  the 
President,  but  Andrew  proceeded  to  show  how  inade- 
quate and  incomplete  this  list  was.  In  this  state  of 
affairs  Cameron  resigned,  the  new  Secretary,  Stanton, 
came  to  Andrew's  support,  and  the  disputed  points 
concerning  these  regiments  were  satisfactorily  adjusted. 
The  "Department  of  New  England"  was  abolished  and 
the  Butler-Andrew  quarrel  was  closed.  The  incident  is 
mentioned  not  for  its  own  sake,  but  because  such  details 
of  maladjustment  must  always  be  remembered  in  any 
discussion  of  State  and  Federal  relations  during  the  war. 
Other  similar  clashes  of  authority  must  be  passed 
over  with  bare  mention. ^'^  Early  in  the  war  the  States 
were  allowed  to  buy  arms,  and  the  competition  of  State 
purchasing  agents  in  this  country  and  abroad  forced  up 
the  price  of  arms  more  than  one  hundred  per  cent. 
Where  Federal  commanders  found  it  necessary  to  de- 
clare martial  law  in  the  loyal  States,  the  governors 
strenuously  objected;  and  sometimes  the  State  authori- 
ties brought  about  the  arrest  of  Federal  officei's.  After 
State  forces  had  been  placed  in  the  field,  governors 
sometimes  urged  that  important  generals  be  recalled  on 
leave  of  absence  to  conduct  recruiting  within  the  States. 
The  curse  of  politics  was  added  to  official  friction  when 
a  Northern  governor,  being  refused  guns  and  troops  for 
service  within  his  State,  attributed  this  attitude  of  the 
Federal  Government  to  the  influence  of  politicians  who 
would  be  glad  to  discredit  him  before  the  President. 
Or  again,  in  the  exercise  of  the  vast  appointing  power 
of   the   governor,   which   included   the  appointment   of 

"  Adminititnitive  relations  between  the  States  and  the  Federal  Gov- 
ernment during  the  Civil  War  are  discussed  in  W.  B.  Weeden,  War 
Government,  Federal  and  Stale,  1S61-1S65.  An  intensive  study  of  such 
problems  for  one  State  is  to  be  found  in  I.  O.  Foster,  "The  Relation  of 
the  State  of  Illinois  to  the  Federal  Government  during  the  Civil  War," 
a  doctoral  thesis  prepared  at  the  University  of  Illinois  in  1925. 


STATE  AND  FEDERAL  RELATIONS       417 

Federal  military  officers,  the  taint  of  politics  was  either 
present  or  its  presence  was  charged  by  the  opposite 
party.  Knowing  Lincoln's  desire  to  be  fair  to  both  sides, 
malcontents  would  appeal  to  the  President  over  the 
head  of  the  governor,  and  unfortunate  misunderstand- 
ings would  result. 

Though  the  country  was  far  from  approaching  the 
condition  of  "a  nation  in  arms"  which  obtained  during 
the  World  War,  yet  local  military  activity  was  so  thor- 
oughly interwoven  with  the  national  cause  that  a  clear- 
cut  separation  of  State  and  Federal  forces  was  impos- 
sible. This  was  illustrated  by  the  curious  "agreement" 
between  President  Lincoln  and  Governor  Gamble  of 
Missouri  whereby  the  governor,  in  commissioning  the 
commander  of  the  Missouri  State  militia  acting  as  home 
guards,  was  to  select  an  officer  who  was  also  to  be 
placed  by  the  President  in  command  of  the  Department 
of  the  West.^^  We  find  another  example  showing  the 
interrelation  of  the  State  militia  and  the  Federal  forces 
in  connection  with  the  "Pennsylvania  Reserve  Corps" 
raised  for  home  protection  in  1861,  but  later  incorpo- 
rated into  the  Federal  army  by  special  act  of  Congress. 
This  arrangement  resulted  in  difficulties  as  to  the  filling 
of  vacancies  among  the  officers,  and  necessitated  elab- 
orate adjustments  relative  to  Federal  compensation  for 
this  use  of  State  troops.^^ 

In  his  annual  report  to  Congress,  December  1,  1861, 
the  Secretary  of  War  wrote  concerning  the  selection  of 
officers  for  the  United  States  volunteer  regiments: 

At  present  each  Governor  selects  and  appoints  the  officers 
for  the  troops  furnished  by  his  State,  and  complaint  is  not 

"  Nicolay  and  Hay,  Lincoln,  V,  96-97. 

**  Letter  of  General  Meade  to  General  S.  S.  Williams,  October  20, 
1862:  Messages  oj  Governor  A.  G.  Curtin  Relative  to  the  Reserve 
Corps,  Pennsylvania  Volunteers   (Harrisburg,  1863). 


418  THE  CONSTITUTION  UNDER  LINCOLN 

infrequently  made  that,  when  vacancies  occur  in  the  field, 
men  of  inferior  qualifications  are  placed  in  command  over 
those  in  the  ranks  who  are  their  superiors  in  military  expe- 
rience and  capacity.  The  advancement  of  merit  should  be 
the  leading  principle  in  all  promotions,  and  the  volunteer  sol- 
dier should  be  given  to  understand  that  preferment  will  be  the 
sure  reward  of  intelligence,  fidelity,  and  distinguished  serv'ice.^" 

But  the  mention  of  examples  to  illustrate  this  over- 
lapping of  Federal  and  State  authority  in  the  field  of 
military  affairs  must  not  be  prolonged  to  a  wearisome 
length.-^  If  the  full  story  of  this  phase  of  the  war  were 
told  it  would  show  that  far  more  was  left  to  State 
action  than  is  commonly  supposed,  and  that,  as  the  war 
progressed,  military  control  was  of  necessity  absorbed 
by  the  National  Government.  There  was  an  essential 
disharmony  between  the  State  and  the  national  view- 
points, and  the  paramount  needs  of  the  nation  inev- 
itably asserted  themselves,  so  that  Governor  Andrew, 


'"Sen.  Exec.  Doc.  No.  1,  37  Cong.,  2  sess.,  p.  9.  The  policy  of 
permitting  governors  to  commission  officers  for  the  volunteer  regiments 
was  adopted,  as  General  Upton  says,  partly  to  meet  State-rights  ob- 
jections. Many  of  the  Senators  and  Representatives,  he  says,  "held  that 
the  volunteers  were  militia,  or  State  troops,  whose  officers  under  the 
Constitution  could  only  be  appointed  by  the  Executive  of  the  States." 
(Upton,  Military  Policy  of  the  United  States,  259.)  It  should  be 
further  noted  that  early  in  the  war  the  doubtful  expedient  of  having 
the  men  of  the  United  States  volunteer  regiments  elect  their  own 
officers  was  tried.  The  act  of  July  22,  1861,  for  the  raising  of  volunteer 
forces,  provided  that  for  the  filling  of  vacancies  the  men  of  each  com- 
pany should  vote  for  officers  aa  high  as  captain,  while  vacancies  above 
the  rank  of  captain  were  to  be  filled  by  the  votes  of  the  commissioned 
officers.  ([/.  S.  Stat,  at  Large,  XII,  270).  This  provision  of  law,  said 
General  Upton,  incorporated  the  "worst  vice  known  in  the  military 
system  of  any  of  the  States,"  for  it  "tempted  every  ambitious  officer 
and  soldier  to  play  the  demagogue."  (Upton,  op.  cit.,  p.  260.)  On  Au- 
gust 6,  1861,  this  section  was  repealed.     (U.  S.  Stat,  at  Large,  XII,  318.) 

"The  whole  subject  of  State  and  Federal  relations  as  to  militarj^  mat- 
ters during  the  Civil  War  is  ably  discussed  by  Fred  A.  Shannon  in  an 
article  entitled  "State  Rights  and  the  Union  Army."  {Miss.  Vail.  Hist. 
Rev.,  XII,  51-71.) 


STATE  AND  FEDERAL  RELATIONS       419 

for  instance,  from  having  been  virtually  "war  minister" 
in  1861  became  (as  he  said)  after  March,  1863,  in  re- 
spect to  the  raising  of  troops,  merely  "an  ofl&cial  in  Stan- 
ton's huge  department.-^ 

IV 

It  has  sometimes  been  said  that  the  governors  are  the 
President's  "subordinates"  in  bringing  the  militia  into 
Federal  service.  It  has  also  been  suggested  that  the 
governors  of  Virginia,  North  Carolina,  Kentucky,  Ten- 
nessee, Missouri  and  Arkansas  (the  border-State  gov- 
ernors who  refused  Lincoln's  call  for  troops  and  other- 
wise defied  the  Government),  made  themselves  "subject 
to  United  States  court-martial,"  and  "ought  to  have 
been  arrested,  tried,  and  condemned  by  a  military  tri- 
bunal." -^  Such  a  suggestion  as  this  raises  the  whole 
question  of  national  obligations  and  liabilities  of  the 
State  executives. 

Two  distinct  questions  are  here  involved:  First,  may 
the  governor  of  a  State  be  properly  considered  a  "sub- 
ordinate" of  the  President?  Second,  if  the  Governor 
fails  to  perform  his  national  duty  or  defies  the  National 
Government,  is  there  any  Federal  power  of  discipline  or 
punishment  that  may  be  exercised  over  him? 

In  considering  the  first  of  these  questions  it  may  be 
noted  that  the  President,  in  calling  the  militia  into 
Federal  service,  habitually  makes  his  proclamation,  or 
executive  order,  enforceable  through  the  State  governors. 
Furthermore  it  has  been  held  that  a  requisition  by  the 
President  upon  a  State  governor  for  militia  is  in  legal 
intendment  an  order.^*     The  President  has  the  right  to 

="  Pearson,  Andrew,  II,  122. 

"  Burgess,  The  Civil  War  and  the  Constitution,  I,  175. 
**[/.  S.  Supreme  Court  Reps.   (5  Law.  Ed.,  Rose's  Notes)  p.  1016; 
Houston  vs.  Moore,  5  Wheaton  1. 


420  THE  CONSTITUTION  UNDER  LINCOLN 

designate  the  governor  as  the  ofl&cer  by  whom  the 
mihtia  is  to  be  called  forth,  and  it  is  also  within  the 
power  of  Congress  to  pass  a  law  enforceable  through 
State  governors. 

But  in  such  mstances  it  would  be  a  misuse  of  terms 
to  speak  of  the  governor  as  the  "subordinate"  of  the 
President.  The  President  does  not  order  the  governors 
to  do  so  and  so.  The  order  is  upon  the  citizens,  through 
the  governors.  The  dignity  of  the  governors  as  the 
highest  executive  officers  of  the  States  is  respected  by 
the  President,  who  calls  upon  them  to  do  certain  things 
but  does  not  presume  to  order  them.  It  is  a  relation  of 
comity  rather  than  one  of  superior  and  inferior. 

It  has  been  urged  that  since  the  President  is  Com- 
mander-in-Chief of  the  national  militia,  while  the  gov- 
ernors are  commanders-in-chief  of  the  State  mihtia, 
therefore  the  governors  are  the  "subordinates"  of  the 
President.  But  such  is  not  the  case.  At  any  given 
time,  the  militia  is  either  in  the  service  of  the  State 
or  in  the  Federal  service.  It  is  in  one  or  the  other  of 
these  services.  If  in  the  State  service,  the  governor  is 
the  commander;  if  in  Federal  service,  the  President 
is  commander.  There  are  blunders  enough  in  the 
constitutional  and  statutory  provisions  regarding  the 
militia,  but  here  is  one  that  was  happily  avoided.  The 
militia  is  not  at  the  same  time  under  the  command  of 
the  governors  and  of  the  President. 

Turning  to  the  second  question  above  propounded, 
we  may  now  inquire  whether  there  is  any  legal  recourse 
available  to  the  National  Government  for  compelling 
a  State  governor  to  do  his  Federal  duty.  That  a  gov- 
ernor has  Federal  duties  is,  of  course,  clear.  It  is  a 
Federal  duty  for  a  governor  to  remand  a  criminal  flee- 
ing into  his  State  from  one  of  the  other  States.  The 
Federal  statute  of  1793  reads:   "it  shall  be  the  duty 


STATE  AND  FEDERAL  RELATIONS       421 

of  the  executive  authority  of  the  State  ...  to  cause 
the  fugitive  to  be  delivered."  -^ 

But  it  is  another  matter  when  one  talks  of  com- 
pelling the  governor  to  perform  this  duty.  This  very 
subject  was  covered  by  the  Supreme  Court  of  the 
United  States  in  1860  in  the  case  of  Kentucky  vs.  Denni- 
son.  Chief  Justice  Taney,  speaking  of  the  act  for  the 
rendition  of  criminals,  said:  ^* 

The  act  does  not  provide  any  means  to  compel  the  execution 
of  this  duty,  nor  inflict  any  punishment  for  neglect  or  refusal 
on  the  part  of  the  Executive  of  the  State;  nor  is  there  any 
.  .  .  provision  in  the  Constitution  which  arms  the  Government 
of  the  United  States  with  this  power.  ...  It  is  true  that  Con- 
gress may  authorize  a  particular  State  officer  to  perform  a 
particular  duty,  ,  .  .  But  if  the  Governor  of  Ohio  refuses  to 
discharge  this  duty,  there  is  no  power  delegated  to  the  General 
Government,  either  through  the  Judicial  Department  or  any 
other  department,  to  use  any  coercive  means  to  compel  him. 

Even  within  the  State,  judicial  action  may  not  re- 
strain nor  coerce  the  governor  in  the  performance  of 
executive  acts.-"^  It  is  inaccurate  to  speak  of  a  gov- 
ernor being  liable,  for  failure  to  perform  official  acts, 
to  a  United  States  court-martial  or  to  any  other  form 
of  Federal  coercion. 

There  is,  indeed,  an  indefiniteness  in  American  law 
concerning  the  relation  of  the  President  to  the  State 
governors,  so  that  when  their  functions  unexpectedly 
converge  or  overlap  it  is  usually  necessary  to  fall  back 
upon  some  improvised  modus  vivendi  of  cooperation. 

Our  law  and  our  body  of  legal  doctrine  is  full  enough 

"Act  of  Feb.  12,  1793.     U.  S.  Stat,  at  Large,  I,  302. 

**  Kentucky  vs.  Dennison,  65  U.  S.  66,  107  et  seq. 

"In  some  States,  governors  are  placed  under  the  operation  of  ju- 
dicial writs  as  to  purely  ministerial  acts.  {Ruling  Case  Law,  XII, 
1009.) 


422  THE  CONSTITUTION  UNDER  LINCOLN 

in  matters  touching  the  relation  of  the  State  and  nation 
in  the  legislative  sphere,  and  this  is  also  true  in  the 
judicial  sphere.  Where  Federal  and  State  laws  con- 
flict, the  Federal  law  supersedes  that  of  the  State;  and 
in  case  a  State  court  issues  a  decision  repugnant  to 
Federal  law,  that  decision  may  be  set  aside  by  a  Fed- 
eral court.  But  in  executive  matters,  where  the  gov- 
ernor acts  in  a  field  in  which  the  President  and  his 
Cabinet  also  act,  the  national  executive  does  not  under- 
take to  "set  aside,"  or  to  direct,  the  action  of  the 
State  executive.  Normally,  of  course,  the  President 
and  his  Cabinet  do  not  act  over  the  same  subject  matter 
as  the  governors,  but  they  were  constantly  doing  so 
during  the  Civil  War,  and  this  overlapping  produced 
many  strange  situations  and  led  to  numerous  irregu- 
larities.^^ 

Nor  is  it  merely  a  question  of  "compelling"  a  recal- 
citrant State  governor  to  do  his  Federal  duty.  It  is 
more  often  a  question  of  honest  difference  of  opinion 
as  to  what  that  duty  is.  So  long  as  the  Federal  execu- 
tive and  the  State  executive  move  in  separate  channels, 
all  is  well;  but  when  their  courses  converge,  difficulty 
develops,  not  as  a  rule  because  one  side  defies  the  other, 
but  rather  because  the  definition  of  the  respective  duties 
involved  is  not  sufficiently  clear.^® 

"  A  governor  may  not,  independently,  exercise  the  war  power.  Where 
a  State  governor  arrested  "rebel"  sympathizers  and  announced  that 
they  would  be  confined  until  certain  Union  prisoners  should  be  re- 
leased, his  action,  in  the  opinion  of  the  Judge  Advocate  General, 
transcended  the  police  power  of  the  State  and  amounted  to  an  assump- 
tion of  the  war  power.  It  was  therefore  held  illegal.  (.Digest  of  the 
Opinions  of  the  Judge  Advocates  General  [Revised  ed.,  1901],  p.  695.) 

^^  For  general  treatments  of  the  powers  of  the  governor,  see:  J.  A. 
Fairlie,  "The  State  Governor,"  Mich.  Law.  Rev.,  X,  Nos.  5  and  6; 
Finley  and  Sanderson,  The  American  Executive;  J.  M.  Mathews, 
American  State  Government. 


STATE  AND  FEDERAL  RELATIONS       423 


A  significant  chapter  of  Civil  War  history  is  that 
which  concerns  the  financial  relations  between  the  States 
and  the  National  Government.  In  this  field,  as  in  the 
military  sphere,  State  action  for  national  purposes  was 
frequent,  usually  leading  to  the  result  that  the  nation 
finally  had  to  pay,  after  having  suffered  from  the  ineffi- 
ciency of  State  performance. 

The  direct  tax  law  of  August  5,  1861,  named  the 
quotas  that  each  State  should  pay,  even  including  those 
within  the  Confederacy.^*^  The  apportionment  of  the 
quotas,  as  required  by  the  Constitution,  was  according 
to  population,  which  every  expert  in  public  finance 
knows  to  be  an  unsound  basis  for  taxation.  Wealth, 
not  numbers,  is  the  proper  criterion.  Federal  machin- 
ery was  provided  for  levying  upon  real  estate  and  col- 
lecting directly  from  individual  citizens  within  the 
States,  but  such  Federal  machinery  was  to  be  employed 
only  in  those  States  which  neglected  to  raise  their 
specified  quotas  by  their  own  officers  and  in  their  own 
way. 

This  tax  ultimately  yielded  a  revenue  of  approxi- 
mately seventeen  million  dollars,  of  which  $2,300,000 
was  reported  as  having  been  contributed  by  the  South- 
em  States.^^  Long  after  the  war,  in  1891,  Congress 
passed  a  bill  reimbursing  the  States  for  the  amounts 
which  they  had  paid  under  this  tax.^^  The  general 
impression  that  the  South  had  not  borne  its  due  share 
in  this  taxation — an  impression  which  the  facts  do  not 


*"  Supra,  V.  317. 

"Message  of  President  Cleveland,  March  2,  1889:     Senate  Journal, 
50  Cong.,  2  sess.,  p.  503. 
"  U.  S.  Stat,  at  Large,  XXVI,  822. 


424  THE  CONSTITUTION  UNDER  LINCOLN 

boar  out — appeared  to  be  the  principal  reason  for  the 
reimbursing  measure.^^ 

A  similar  bill  had  been  passed  in  1889  but  was  vetoed 
by  President  Cleveland  for  excellent  reasons.  He  urged 
that  the  reimbursement  constituted  a  bald  gratuity  un- 
justified by  the  mere  existence  of  a  treasury  surplus; 
that  such  an  expenditure  was  not  for  a  legitimate  pub- 
lic purpose,  and  was  unconstitutional;  that  the  people 
should  not  be  familiarized  with  the  spectacle  of  their 
Government  repenting  the  collection  of  taxes  and  re- 
storing them;  and  that  if  a  distribution  to  the  original 
payers  were  attempted,  many  fraudulent  claims  and 
bitter  contests  would  result.-''*  This  unfortunate  ex- 
perience with  the  "direct  tax"  has  done  much  to  dis- 
credit the  whole  plan  of  raising  a  Federal  tax  by  means 
of  State  quotas,  and  the  method  has  never  been  used 
since  the  Civil  War.  It  may  now,  in  fact,  be  regarded 
as  obsolete. 

A  curious  use  of  the  State  taxing  power  is  to  be  seen 
in  those  laws  which  levied  taxes  upon  all  the  citizens 
in  order  to  raise  a  fund  for  the  benefit  of  drafted  men. 
Sometimes  revenue  obtained  in  this  manner  was  used 
to  pay  commutation  money,  thus  permitting  the  drafted 
men  to  avoid  service;  sometimes  substitutes  were  paid 
for,  while  again  the  men  who  preferred  to  sen^e  would 
be  paid  the  equivalent  of  the  substitute  price.  Several 
of  the  Northern  States  had  such  laws  and  as  a  rule 
they  were  upheld  by  the  State  courts,  though  they 
occasioned  grave  constitutional  discussions. 

In  justifying  such  acts  it  was  argued  that  the  States 
share  with  Congress  the  power  to  raise  armies  and  may 
therefore  legislate  on  the  subject;  that  ever>'  citizen  is 

"This  prcvailinK  view  ignores  the  extensive  forfeitures  by  means  of 
land  sales  in  the  South  for  non-pavment  of  the  tax.  See  supra,  pp.  318- 
319. 

** Senate  Journal,  50  Cong.,  2  scss.,  pp.  501-507. 


STATE  AND  FEDERAL  RELATIONS       425 

equally  obligated  to  perform  military  service;  that  this 
equal  obligation  justifies  a  tax  upon  all  to  relieve  the 
few  who  are  drafted;  that  State  action  to  provide  com- 
mutation money  was  merely  a  compliance  with  the 
$300  clause  of  the  Conscription  Act;  and  that  it  was  in 
the  public  interest  to  retain  for  the  community  the 
economically  superior  services  of  the  drafted  men,  per- 
mitting inferior  substitutes  to  take  their  places  in  the 
army!  ^^ 

It  remained  for  the  Supreme  Court  of  Kentucky  to 
issue  the  clearest  statement  denouncing  the  unconstitu- 
tionality of  this  sort  of  legislation.  A  citizens'  com- 
mittee in  a  Kentucky  county  had  borrowed  over 
$100,000  on  the  credit  of  the  county  to  be  used  for 
the  relief  of  about  two  hundred  drafted  men,  either  as 
direct  payments  or  to  purchase  substitutes.  A  law  of 
the  State  was  then  passed  authorizing  the  issuing  of 
bonds  and  the  levying  of  a  tax  by  the  county  court  to 
repay  the  sum  borrowed.  In  the  State  Supreme  Court 
this  and  other  similar  acts  of  the  legislature  were  de- 
clared unconstitutional. 

The  court  held  that  Congress  has  the  exclusive  power 
to  raise  and  support  armies,  and  it  was  pointed  out 
that  the  States  may  not  tax  for  an  exclusively  national 
purpose.  Whatever  might  be  the  great  moral  obliga- 
tion of  every  citizen  to  bear  arms,  the  specific  obliga- 
tion rested  upon  the  drafted  men  only;  and  a  tax  to 
relieve  them  would  be  for  a  private,  not  a  public,  pur- 
pose. The  constitutional  taxing  power  of  the  State  leg- 
islature, it  was  held,  did  not  cover  such  an  assessment. ^^ 

We  have  already  observed  the  extensive  military 
activities  of  the  State  governments  in  the  early  part  of 

"For   a   citation   of   decisions   dealing   with    law3   of   this   sort,   see 
supra,  Chapter  XI,  n.  21. 
*®  Ferguson  vs.  Landram,  64  Ky.  548. 


426  THE  CONSTITUTION  UNDER  LINCOLN 

the  war.  Naturally  these  activities  had  their  effect  upon 
the  financial  relations  of  the  States  to  the  nation.  The 
States  demanded  reimbursement  from  the  national 
treasury  for  their  expenditures,  and  it  was  promptly 
granted.  The  special  session  of  1861  witnessed  the  en- 
actment of  three  measures  dealing  with  this  subject. 

1.  In  the  army  appropriation  bill  of  July  17,  1861, 
the  item  of  $10,000,000  was  set  aside  "to  refund  to 
the  States  expenses  incurred  on  account  of  volunteers 
called  into  the  field."  ^^ 

2.  An  act  of  July  27,  1861,  without  carrying  any 
definite  appropriation,  directed  in  general  terms  that 
payments  be  made  to  the  States  to  cover  the  cost  of 
"enrolling,  subsisting,  clothing,  supplying,  arming, 
equiping,  paying  and  transporting  its  troops."  ^® 

3.  A  third  law  appropriated  $2,000,000  to  be  spent 
under  the  discretion  of  the  President  in  supplying  arms 
and  other  aid  to  loyal  citizens  of  States  in  which  re- 
bellion existed  or  was  threatened. ^^ 

The  statute  just  mentioned  was  put  to  an  extraordi- 
nary use  in  Indiana.  Owing  to  the  Democratic  plan 
to  pass  a  measure  that  would  wrest  the  control  of  the 
militia  from  the  hands  of  the  governor,  the  Repubhcan 
minority  absented  themselves  from  the  legislature.  As 
a  result  the  State  government  was  left  without  the 
tax  laws  and  appropriations  necessary  to  carry  on  its 
business.  When  the  matter  was  presented  in  person 
to  Secretary  Stanton  in  Washington,  and  he  was  told 
that  Lincoln  knew  of  no  law  by  which  aid  could  be 
extended,  Stanton  is  said  to  have  replied,  "By  God,  I 
will  find  a  law."  The  law  providing  the  appropriation 
to  cover  expenses  of  supplying  arms  to  loyal  citizens 


"  U.  S.  Stat,  at  Large,  XII.  264.       "  Ibid.,  p.  276. 
"Act  of  July  31,  1861:  Ibid.,  p.  283. 


STATE  AND  FEDERAL  RELATIONS       427 

in  States  threatened  with  rebellion  was  therefore 
stretched  to  cover  an  order  issued  by  President  Lincoln 
advancing  $250,000  to  Morton,  who  was  held  account- 
able for  the  sum.  Of  the  sum  thus  advanced,  $160,000 
was  used  to  pay  interest  on  the  State  debt.  In  effect 
the  transaction  was  an  advance  from  the  national 
treasury,  without  specific  congressional  appropriation, 
for  the  purpose  of  tiding  a  State  over  a  serious  finan- 
cial crisis.^  *^ 

This  general  policy  of  compensating  the  States  for 
their  war  expenditures  was  further  pursued  from  year 
to  year  until  the  resulting  aftermath  of  war  claims 
presented  a  problem  of  bewildering  magnitude.  The 
general  law  of  July  27,  1861,  was  looked  upon  as  a 
pledge  to  which  the  Government  was  committed,  and 
Congress  kept  on  appropriating  money  to  carry  out 
the  act  until  in  1871  it  was  repealed;  but  even  after 
the  repeal,  unexpended  balances  were  reappropriated 
and  fresh  appropriations  for  the  same  object  were 
passed.  Over  forty-two  million  dollars  had  been  re- 
funded to  the  States  by  1880,  while  there  still  remained 
nearly  nine  millions  unpaid.*^ 

In  describing  the  formidable  problems  involved  in 
making  these  reimbursements,  the  Examiner  of  State 
Claims  wrote  in  1880:  ".  .  .  it  would  probably  be  be- 
yond the  power  of  the  judges  ...  of  the  Court  of 
Claims  ...  to  memorize  or  collate  the  administrative 
rulings  or  precedents  that  underlie  the  departmental 
actions  touching  allowances  ...  on  these  claims."  ^^ 
The  debates  which  have  occurred  whenever  these  claims 
have  been  presented  in  Congress  give  evidence  of  the 
State    jealousies    involved.      When,    for    instance,    the 

■"Foulke,  Morton,  I,  Ch.  xxii. 

"Sen.  Exec.  Doc.  No.  74,  46  Cong.,  2  sess.,  p.  199. 

"Ibid.,  p.  6. 


428  THE  CONSTITUTION  UNDER  LINCOLN 

claim  of  Pennsylvania  was  presented  for  a  special  re- 
imbursement to  cover  expenses  incurred  in  calling  out 
the  militia  at  the  time  of  Lee's  invasion  in  1863,  Rep- 
resentative Fernando  Wood  moved  to  insert  "New 
York,"  Representative  Rogers,  "New  Jersey,"  and  the 
claims  of  other  States  were  then  presented. ^^  Though 
similar  repayments  had  been  made  to  the  States  in 
previous  wars,  yet  neither  sound  political  science  nor 
actual  experience  would  seem  to  justify  the  practice  of 
allowing  the  States  to  perform  national  functions  and 
then  look  to  the  nation  for  reimbursement. 


VI 

We  may  conclude  this  study  of  State  and  Federal  re- 
lations by  noting  those  jurisdictional  conflicts  which 
arose  when  attempts  were  made  to  hold  Federal  ofl&cers 
answerable  to  the  State  courts.  Such  attempts  were 
frequent.  We  have  noted  in  another  chapter  that  in 
many  cases  ofl&cers  of  the  Federal  Government  were 
subjected  to  criminal  prosecutions  or  to  lawsuits  within 
the  States  because  of  acts  performed  in  their  ofi&cial  ca- 
pacity.*** The  answer  of  the  Federal  Government,  as 
we  have  seen,  was  to  provide  in  the  Indemnity  Act  that 
the  President's  orders  should  serve  as  a  complete  de- 
fense in  such  cases,  and  to  require  the  removal  of  such 
actions  to  the  Federal  courts,  whose  jurisdiction  was 
in  this  way  greatly  expanded  at  the  expense  of  the 
States. 

But  other  forms  of  coercion  or  restraint  were  resorted 
to  by  the  State  judges.  The  writ  of  habeas  corpus  was 
frequently  used  for  the  purpose  of  releasing  men  held 

"  Cong.  Globe,  April  23,  1864,  38  Cong.,  1  sess.,  p.  1793. 
**  Supra,  Chapter  IX. 


STATE  AND  FEDERAL  RELATIONS       429 

in  military  custody  by  oflficers  who  were  enforcing  the 
Federal  conscription  law^,  or  to  free  citizens  subjected 
to  military  arrest. ^^  At  times  the  use  of  the  writ  by 
the  State  judges  was  based  upon  an  assumption  of 
concurrent  jurisdiction.  The  argument  ab  inconvenienti 
was  advanced,  and  it  was  contended  that  the  State 
judge  might  be  applied  to  in  preference  to  the  Federal 
judge  on  the  ground  of  greater  accessibility.*^  Or  again 
it  was  urged  that  since  the  habeas  corpus  privilege 
had  been  suspended  in  the  Federal  courts  the  State 
tribunals  offered  the  citizen's  only  recourse  for  enjoy- 
ing this  high  privilege,  and  the  writ  could  therefore 
be  directed  even  against  Federal  officers,  the  assump- 
tion being  that  the  Federal  judge  would  be  willing  to 
grant  the  writ,  but  was  restrained  by  the  President's 
action  from  making  effective  the  privilege  involved. 

More  often,  however,  the  situation  presented  itself 
as  a  clash  of  authority,  and  the  instances  of  this  use 
of  the  State  judicial  power  may  commonly  be  traced 
to  a  sentiment  adverse  to  some  phase  of  Federal  policy. 
Where  opposition  to  conscription  was  strong,  local  ju- 
dicial relief  would  be  sought  on  the  ground  that  the 
individual  in  question  was  not  liable  to  military  service, 
or  on  the  broader  ground  that  the  conscription  law 
itself  was  unconstitutional.  In  the  one  case  the  State 
judge  would  be  asked  to  assume  the  function  of 
estopping  a  Federal  official  from  misusing  his  powers 
under  the  law,  denying  to  the  Federal  officer  the  au- 
thority, under  executive  regulations,  to  determine  the 
liability    of    particular    individuals,    and    making    such 

"45  Pa.,  238,  esp.  301  et  seq.;  Opinion  of  William  Whiting,  Solicitor 
of  the  War  Department:     0.  R.,  Ser.  Ill,  Vol.  3,  p.  460. 

**£'x  parte  Hill,  38  Ala.  429;  ibid.,  458.  These  Alabama  cases  pre- 
sent a  precise  parallel  between  the  law  of  the  United  States  and  that 
of  the  Confederate  States  on  this  subject. 


430  THE  CONSTITUTION  UNDER  LINCOLN 

ofl&cer  answerable  for  his  conduct  to  the  State  judges. 
In  the  other  case  the  State  court  would  be  exercising 
its  right  to  apply  the  Federal  Constitution  as  superior 
to  a  Federal  statute.  This  right  the  State  court  un- 
doubtedly has,  and  it  is  even  a  duty,  made  so  by  that 
clause  which  declares  the  national  Constitution  to  be 
binding  upon  State  judges,  who  are  under  oath  to  up- 
hold it.  The  error  involved  was  not  in  claiming  this 
right,  but  in  adopting  an  unwarranted  method  of  pro- 
cedure in  exercising  it.  The  authority  to  issue  a  decision 
denying  the  constitutionality  of  a  Federal  law  does  not 
justify  a  State  judge  in  the  use  of  a  method  which 
amounts  to  controlling  a  Federal  officer  and  preventing 
the  discharge  of  his  functions. 

The  leading  decision  on  this  subject  is  that  of  the 
Supreme  Court  of  the  United  States  in  Ahleman  vs. 
Booth,  announced  by  Chief  Justice  Taney  in  1858.^'  A 
State  court  in  Wisconsin  had  issued  a  writ  of  habeas 
corpus  for  the  release  of  a  prisoner  held  by  a  Federal 
commissioner  operating  under  the  Fugitive  Slave  Act 
of  1850.  The  Chief  Justice  showed  that  the  judges  and 
courts  of  Wisconsin  had  no  basis  for  the  power  thus 
assumed.    He  said: 

If  the  judicial  power  exercised  in  this  instance  has  been 
reserved  to  the  States,  no  offense  against  the  laws  of  the  United 
States  can  be  punished  by  their  own  courts  without  the  per- 
mission and  according  to  the  judgment  of  the  courts  of  the 
State  in  which  the  party  happens  to  be  imprisoned;  for,  if  the 
Supreme  Court  of  Wisconsin  possessed  [this  authority]  their 
supervising  and  controlling  power  would  embrace  the  whole 
criminal  code  of  the  United  States.'*^ 

After  referring  to  the  supremacy  of  "this  Constitution, 

°  62  U.  S    (21  How.)  506.  *"  Ibid.,  p.  515. 


STATE  AND  FEDERAL  RELATIONS       431 

and  the  laws  made  in  pursuance  thereof,"  the  Chief  Jus- 
tice continued: 

But  the  supremacy  thus  conferred  .  .  .  could  not  peace- 
fully be  maintained,  unless  it  was  clothed  with  judicial  power 
equally  paramount  in  authority  to  carry  it  into  execution; 
for  if  left  to  the  courts  of  justice  of  the  several  States,  con- 
flicting decisions  would  unavoidably  take  place,  and  the  local 
tribunals  could  hardly  be  expected  to  be  always  free  from  .  .  . 
local  influences.  ...  It  was  essential  therefore,  .  .  .  that 
[the  United  States  Government]  should  have  the  power  of 
establishing  courts  of  justice,  altogether  independent  of  State 
power,  to  carry  into  effect  its  own  laws.*^ 

So  convincing  was  this  decision  that  it  held  in  spite 
of  attempts  to  explain  away  its  meaning  or  to  show 
that  it  was  not  applicable  to  the  wartime  situation. 
Thus  Federal  supremacy  in  Federal  matters  was  not 
seriously  impaired  and  in  general  it  may  be  said  that 
these  jurisdictional  controversies  served  as  annoyances 
and  embarrassments  rather  than  actual  obstructions. 
The  usual  result  of  incidents  of  this  nature  was  that 
the  officer  subjected  to  the  writ  refused  to  obey  its 
mandate,  as  he  could  well  afford  to  do  with  the  whole 
government  back  of  him.  A  general  instruction  was 
issued  to  provost  marshals  directing  them  in  such  cases 
to  make  known  to  the  State  judges  that  their  prisoners 
were  held  under  the  authority  of  the  United  States. 
They  were  further  instructed  to  refuse  obedience  to 
State  judicial  mandate,  and  to  resist  the  execution  of 
process  if  such  resistance  should  become  necessary.^" 

That  the  issue  here  involved  went  to  the  very  heart 
of  the  question  as  to  the  constitutional  division  of 
jurisdiction  between  the  State  and  the  nation  is  evident. 

'Ibid.,  p.  518.    See  also  Tarble's  Case,  13  Wall.  397. 
•»  0.  R.,  Ser,  III,  VoL  3,  pp.  460-461,  818. 


432  THE  CONSTITUTION  UNDER  LINCOLN 

The  decisions  on  the  subject  read  like  commentaries  on 
the  fundamental  doctrine  of  our  constitutional  law 
and  are  replete  with  citations  drawn  from  the  Federalist, 
Marshall,  Story,  Kent  and  other  sources  that  rank 
among  our  legal  classics.  Had  the  Federal  Government 
yielded  on  the  points  involved  it  might  as  well  have 
abdicated  its  powers. 

Viewing  in  a  broad  way  the  relations  of  the  loyal 
States  to  the  National  Government  in  the  actual  con- 
duct of  the  war,  it  does  not  appear  that  the  process 
of  centralization  was  excessive.  When  a  close  study 
of  the  war  is  made  with  respect  to  this  problem  some 
of  the  generalizations  that  have  become  familiar  to 
historians  break  down,  and  the  fact  that  stands  out  as 
most  striking  is  rather  the  large  extent  to  which  the 
nation's  business — even  the  military  business — was  left 
with  the  States.  Excess  of  authority  on  the  part  of 
zealous  governors;  interference  by  those  who  were  re- 
calcitrant (as  Seymour  of  New  York) ;  case  after  case 
of  irregularity,  friction,  or  maladjustment;  and  in  the 
end  the  payment  of  the  bills  out  of  the  national  purse — 
these  are  the  facts  which  the  war  history  reveals.  When, 
in  1863,  nationalizing  laws  came  to  be  passed,  their 
object  was  the  efficient  performance  of  truly  national 
functions,  after  it  had  become  evident  by  a  trial-and- 
error  process  that  State  performance  was  unsatisfac- 
tory. The  National  Government  did  not  extend  its 
power  by  the  assumption  of  State  functions  so  much 
as  by  taking  to  itself  the  conduct  of  its  own  affairs. 
The  nationalizing  measures,  in  other  words,  were  for 
national  objects.  They  may  be  best  understood,  per- 
haps, as  measures  to  overcome  undue  decentraHzation. 


CHAPTER  XVIII 

THE  PARTITION   OF  VIRGINIA 

I.   Long-standing  differences  between  eastern  and  west- 
ern Virginia 
II.   Unionist  movement  in  the  western  counties:   Reor- 
ganization of  the  government  of  Virginia 

III.  The  launching  of  the  "restored  government" 

IV.  Steps  taken  for  the  formation  of  the  new  State: 

The  "Wheeling  ordinance"  of  August  20,  1861 
V.   Action  of  the  Federal  Government  toward  the  new 
State  movement:    The  West  Virginia  bill  in  Con- 
gress 
VI.   Attitude  of  Lincoln  and  his  Cabinet  toward  the  West 

Virginia  bill:    Admission  of  the  new  State 
VII.   Later   career   of   the   "restored   government":     At- 
tempts to  obtain  representation  of  "Virginia"  in 
the  Congress  at  Washington 
VIII.   Attitude  of  Virginia  and  of  the  Supreme  Court  in 
the  controversy  between  Virginia  and  West  Vir- 
ginia concerning  certain  disputed  counties 
IX.    General    considerations   concerning   the   process   by 
which  the  new  commonwealth  was  created 

The  upheaval  in  State  affairs  which  characterized 
the  war  for  the  Union  left  all  the  States  save  one  in- 
tact. The  confusing  spectacle  of  rival  State  govern- 
ments appeared  in  various  border  commonwealths  where 
Unionist  and  secessionist  forces  were  about  evenly  di- 
vided; and  it  might  have  been  supposed  that  the  forces 
of  disruption  which  the  war  unleashed  would  cause  the 
formation  of  various  new  political  units,  but  it  was 
only  in  Virginia  that  the  disintegrating  process  left  a 
permanent  effect.     For  our  purpose  the  partition   of 

433 


434  THE  CONSTITUTION  UNDER  LINCOLN 

Virginia  will  be  treated,  not  as  a  matter  of  State  de- 
velopment, but  as  a  phase  of  our  constitutional  history. 
Our  particular  interest  will  be  to  inquire  into  the  efifect 
of  domestic  war  upon  the  constitutional  process  of 
State-making. 


It  has  not  been  proved  to  the  satisfaction  of  the 
writer  that  the  exigencies  of  the  Civil  War  alone  fur- 
nished an  adequate  motive  for  the  permanent  disrup- 
tion of  the  Old  Dominion.  Had  the  purpose  been  merely 
to  safeguard  the  Union  interest  in  Virginia  during  the 
period  of  the  war,  it  is  reasonable  to  suppose  that 
some  method  short  of  making  a  new  commonwealth 
could  have  been  found.  It  is  true  that  citizens  in  west- 
ern Virginia  who  supported  the  Federal  Government 
found  themselves  confronted  with  a  condition  of  af- 
fairs which  approached  anarchy  and  hence  stood  in  need 
of  a  government  other  than  that  at  Richmond  to  which 
they  could  look  for  protection;  but  a  Unionist  govern- 
ment for  Virginia  was  established  to  meet  this  need, 
and,  as  it  was  extended  to  all  the  districts  in  which 
Unionists  could  hope  for  substantial  support,  one  may 
well  ask  whether  the  Federal  cause  required  that  a  sepa- 
rate State  be  formed.  Certain  it  is  that  many  strong 
Union  men  did  not  desire  separation.  Because  of  vari- 
ous grievances  and  sectional  differences,  however,  talk 
of  separation  had  long  been  in  the  air,  and  the  great 
activity  of  the  separationists,  whether  they  constituted 
a  majority  or  not,  enabled  them  to  effect  their  purpose 
as  a  war  measure.^ 

^On  the  formation  of  West  Virginia  the  older  books  should  be  used 
with  caution.  Granville  D.  Hall's  Rending  of  Virginm  is  an  uncritical 
vindication  of  the  new  State  movement  and  the  same  may  be  said 
of  William  P.  Willey,  An  Iriside  View  of  the  Formation  of  the  State 


THE  PARTITION  OF  VIRGINIA  435 

The  divergences  between  the  eastern  and  western  por- 
tions of  the  State  have  often  been  pointed  out.  The 
physiography  of  the  counties  beyond  the  Blue  Ridge 
was  quite  distinct  from  that  of  the  valley,  piedmont 
and  tide-water  sections,  so  that  the  western  counties 
looked  toward  the  Ohio  into  which  their  rivers  poured, 
while  in  the  east  the  flow  of  commerce  and  the  gen- 
eral outlook  was  toward  the  Atlantic.  Social  and  re- 
ligious differences  divided  the  Scotch-Irish  and  Ger- 
man elements  in  the  northwest  from  the  English  in 
the  lower  counties.^  Slaves  were  few  in  those  portions 
of  the  State  which  bordered  upon  Ohio  and  Pennsyl- 

of  West  Virginia,  and  of  Granville  Parker,  The  Formation  of  the  State 
of  West  Virginia.     In  Virgil  A.  Lewis,  History  of  West  Virginia,  the 
whole  movement  is  treated,  but  this  is  done  from  the  point  of  view  of 
the  separationists.    The  same  author  has  brought  together  a  useful  col- 
lection of  documents  under  the  title  How  West  Virginia  was  Made. 
One  finds  a  typical  justification  of  the  measures  taken  for  the  erection 
of  the  new  State  in  the  historical  account  that  opens  the  reports  of 
cases   before   the   State    supreme   court    (1    W.   Va.   5-81),   and   useful 
contemporary  articles  are  found  in  Appleton's  Annual  Cyclopedia,  es- 
pecially for  1861  and  1863.  The  principal  newspaper  to  be  consulted  is 
the  Wheeling  Intelligencer.     On  August  24,  1902,  this  newspaper  pub- 
lished a  "souvenir  edition"  celebrating  its  fiftieth  anniversary;  and  in 
this  issue  the  part  which  the  newspaper  played  in  the  formation  of  the 
State  was  set  forth.    Among  the  recent  studies  one  may  mention  C.  H. 
Ambler,  Sectionalism  in  Virginia  from  1776  to  1861,  and  H.  J.  Eckenrode, 
Political  History  of  Virginia  during  the  Reconstruction.     Of  primary 
importance  is  James  C.  McGregor,   The  Disruption  of  Virginia.     Mc- 
Gregor's book   has   the   merit   of   presenting   the   subject   afresh   in   a 
scholarly  manner  from  a  study  of  the  sources  without  the  bias  that 
inevitably  appears  in  the  pages  of  West  Virginia  writers.     The  Semi- 
centennial History  of  West   Virginia,  by  James  Morton  Callahan,  is 
especially  useful  for  the  bibliography  on  pp.  284-293.     Unique  interest 
attaches  to  the  Pierpoint  papers,  a  large  mass  of  unpublished  material 
in  the  Virginia  archives  at  Richmond.     The  present  writer  made  ex- 
tensive use  of  these  manuscripts  in  the  preparation  of  this  chapter; 
and,  so  far  as  his  knowledge  goes,  they  have  not  heretofore  been  ex- 
amined for  such  a  purpose.     Further  studies  by  Maude  F.  Callahan, 
William  Baird,  and  J.  A.  C.  Chandler  are  noted  in  the  bibliography 
at  the  end  of  this  book. 

*  For  a  discussion  of  the  differences  between  the  eastern  and  western 
portions,  see  C.  H.  Ambler,  Sectionalism  in  Virginia,. 


436  THE  CONSTITUTION  UNDER  LINCOLN 

vania,  and  it  was  only  in  the  east  that  the  institution 
was  of  economic  and  social  importance.^ 

Grievances  accumulated  as  the  years  passed  and  the 
westerners  became  increasingly  resentful  at  what  they 
considered  the  contemptuous  neglect  of  the  east,  in 
whose  hands  rested  actual  control  of  State  affairs.  The 
main  grievances  were  the  mixed  basis  of  representation 
by  which  slave  property  as  well  as  free  population  was 
taken  into  account  in  apportioning  delegates;  the  dis- 
proportion between  the  number  of  those  entitled  to  vote 
and  those  upon  whom  the  burdens  of  taxation  and 
militia  service  fell;  the  limitation  of  the  suffrage  to 
freeholders;  the  restriction  of  internal  improvements 
to  the  east;  the  viva  voce  vote,  and  the  limited  taxa- 
tion of  slave  property  as  compared  with  the  full  taxa- 
tion of  the  real  estate  and  business  interests  of  the 
west.  When  the  constitution  of  1830  was  framed,  it 
was  felt  to  be  so  partial  to  the  "eastern  aristocrats"  that 
every  voting  delegate  from  the  west  opposed  it;  and 
when  submitted  to  the  people  it  was  condemned  in 
the  west  by  an  impressive  majority.  In  1850-51  a  genu- 
ine effort  at  compromise  resulted  in  constitutional 
changes  favorable  to  the  west,  and  a  more  conciliatory 
spirit  was  manifest  in  the  decade  preceding  the  Civil 
War;  but  with  the  opening  of  that  conflict  the  fires 
of  sectionalism  were  rekindled  and  the  Unionists  seized 
the  reins  of  leadership  in  the  western  counties  while 
the  secessionists  obtained  control  in  the  east. 

*  Under  date  of  October,  1861,  the  auditor  of  the  "restored  State"  of 
Virginia  gave  the  following  figures  regarding  the  population  of  the  pro- 
posed State  of  "Kanawha":  white,  273,737;  free  colored,  1110;  slaves, 
6810.  (Journal  of  the  Senate  [of  "restored  Virginia"],  regular  session. 
Wheeling,  commencing  Dec.  2,  1861,  p.  28.) 


THE  PARTITION  OF  \TRGINIA  437 


II 

When  the  Richmond  convention  secretly  passed  the 
ordinance  of  secession  on  April  17,  1861,  there  was 
brought  home  to  each  fireside  and  each  community  the 
momentous  question  of  hazarding  life  and  fortune  upon 
the  new  cause  or  of  resting  these  precious  stakes  upon 
the  old  Union  to  which  allegiance  had  been  due,  A 
true  understanding  of  the  Unionist  movement  in  west- 
em  Virginia  is  to  be  obtained,  not  by  reading  ordi- 
nances, appeals,  proclamations,  and  resolutions,  but  by 
studying  the  manner  in  which  the  people  of  the  western 
counties  viewed  the  hard  realities  of  their  exposed  posi- 
tion when  confronted  with  actual  war.  At  every  step 
in  the  progress  of  the  movement  one  must  take  ac- 
count of  the  turbulence  and  confusion  of  the  times,  the 
intimidation  practiced  by  both  sides,  the  powerful  social 
sanctions  as  well  as  the  physical  violence  brought  to 
bear  against  those  who  resisted  the  dominant  element 
in  the  locality;  the  administering  of  oaths  under  mili- 
tary pressure;  the  use  of  force  at  the  polls;  the  many 
irregularities  in  the  choice  of  delegates  and  in  the  con- 
duct of  elections;  the  hurried  flight  to  Kentucky  or 
Ohio  of  those  who  found  life  intolerable  at  home;  and 
the  military  activity  which  accompanied  the  agitation 
of  political  issues.^  It  was  a  time  of  domestic  strife 
and  even  of  revolution — a  time  in  which  the  greatest 
turbulence  was  seen  at  the  border,  where  Unionists  and 
secessionists  were  intermingled.  The  bitterness  of 
these  times  is  now  happily  forgotten,  but  it  aids  our 
historical  appreciation  of  such  a  subject  as  the  creation 
of  West  Virginia  to  remember  that  the  various  steps 

*0n  all  these  conditions  the  Pierpoint  Papers  (MSS.,  Virginia  State 
Library-)  throw  a  flood  of  light. 


438  THE  CONSTITUTION  UNDER  LINCOLN 

leading  to  the  formation  of  this  new  commonwealth 
were  taken  in  the  excitement  of  conflict  and  war,  rather 
than  in  that  calm  deliberation  which  Is  needful  for  the 
process  of  State-making. 

Organized  resistance  in  the  western  counties  was 
quickly  developed  by  active  Unionist  leaders.  In  the 
various  localities  Union  mass  meetings  were  held  in 
which  the  "heresy"  of  secession  was  denounced  and  de- 
fiance of  the  Richmond  Government  was  voiced.  A 
mass  meeting  at  Clarksburg  issued  on  April  22,  1861,  a 
call  for  a  convention  of  delegates  from  the  northwest- 
em  counties;  and  this  convention  assembled  on  May 
13  at  Wheeling,  where  Unionist  and  separationist  agita- 
tion centered.  This  "first  WTieeling  Convention" 
contained  delegates  from  only  twenty-six  of  the  fifty 
counties  that  were  later  included  in  West  Virginia.^ 
Delegates  to  this  convention  were  chosen  in  various  mass 
meetings  with  little  formality,  and  there  was  no  real 
system  of  representation.  The  delegation  from  each 
county  depended  upon  the  number  that  happened  to 
be  chosen  or  the  number  that  wished  to  attend  rather 
than  upon  any  authorized  basis  of  apportionment. 
"More  than  one  third  of  the  .  .  .  delegates,"  says 
McGregor,  "were  from  the  district  immediately  around 
Wheeling"  and  "the  farther  the  county  was  .  .  .  from 
Wheeling,  the  fewer  the  delegates."  ^ 

This  improvised  "May  Convention"  denounced  the 
Virginia  ordinance  of  secession  and  the  agreement  with 
the  Confederacy;  urged  the  citizens  to  condemn  the 
ordinance  by  popular  vote;  and  called  upon  the  people 


•For  a  map  of  these  counties,  see  J.  M.  Callahan,  Semi-centennial 
History  of  West  Virginia,  p.  150.  The  counties  are  listed  in  1  W.  Va. 
47.  It  is  there  stated  that  the  "committee  on  credentials  reported  duly 
accredited  delegates  from  twenty-six  counties." 

'McGregor,  Disruption  of  Virginia,  193. 


THE  PARTITION  OF  VIRGINIA  439 

to  elect  loyal  men  as  representatives  in  Congress  and 
members  of  the  legislature.  In  the  event  of  the  ratifi- 
cation of  the  ordinance  of  secession,  the  convention 
recommended  that  the  counties  "disposed  to  cooperate" 
send  delegates  to  a  "general  convention"  to  meet  on 
June  11  "to  devise  such  measures  ...  as  the  safety  and 
welfare  of  the  people  may  demand."  Citing  the 
political  axiom  that  "government  is  founded  on  the  con- 
sent of  the  governed,"  the  convention  called  upon  the 
"proper  authorities  of  Virginia"  to  permit  a  peaceful 
and  lawful  separation  of  the  Unionist  counties  from 
the  rest  of  State. "^ 

It  should  be  noted  that  this  "May  Convention"  was 
quite  without  regular  authority  to  take  action  either  for 
Virginia  or  for  the  northwestern  portion  thereof.  The 
June  convention  in  its  address  to  the  people  of  north- 
western Virginia  confessed  the  irregular  character  of 
the  earlier  convention,  saying:  "It  was  literally  a  mass 
convention,  and  from  the  irregular  manner  of  the  ap- 
pointment of  its  delegates,  was  not  calculated  for  the 
dispatch  of  business."  ^  Its  chief  act  was  to  lay  the 
track  for  the  later  convention  whose  measures  were  to 
extend  to  the  fundamental  alteration  of  the  government. 

Before  adjournment,  the  first  Wheeling  convention 
appointed  a  "central  committee"  of  nine  members  to 
act  as  an  emergency  executive  body  to  organize  the 
Unionist  movement.  One  of  the  chief  functions  of  this 
committee  was  to  prepare  plans  for  the  more  impor- 
tant convention  that  was  to  meet  in  June. 

In  the  interval  between  the  first  and  second  Wheeling 
conventions,  the  people  of  Virginia,  on  May  23,  voted 

'  West  Virginia  Legislative  Handbook,  1916,  pp.  261-263.  (This  book 
is  cited  because  of  the  convenient  form  in  which  various  sources  are 
assembled.) 

"/bid.,  p.  275. 


440  THE  CONSTITUTION  UNDER  LINCOLN 

on  the  ordinance  of  secession,  and  a  decisive  majority 
of  the  votes  in  the  northwestern  portion  were  cast 
against  the  ratification  of  that  ordinance.^ 

Such,  in  brief,  were  the  prehminaries  of  that  "June 
convention"  in  Wheehng  whose  action  was  of  such  de- 
cisive importance  in  the  movement  for  separate  state- 
hood. As  this  convention  launched  the  movement  for 
the  formation  of  the  "loyal"  government  of  Virginia, 
and  also  the  new  State  movement,  the  process  by  which 
it  was  made  up  deserves  attention;  though  this  is  a 
subject  on  which  the  various  historical  accounts  throw 
little  light.  The  "Central  Committee  of  the  Union  Con- 
vention of  Western  Virginia,"  which  we  have  above 
mentioned,  functioned  as  a  sort  of  junta  for  promoting 
the  whole  movement,  taking  counsel  from  many  Union- 
ists in  and  out  of  Virginia  as  to  the  most  feasible  plans 
to  be  pursued,  corresponding  with  leading  men  in  the 
various  counties,  and  preparing  in  advance  a  program 
to  be  laid  before  the  coming  convention.  In  various 
counties,  "committees  of  safety"  (reminiscent  of  the 
patriot  committees  of  the  American  Revolution)  were 
appointed,  usually  by  some  sort  of  mass  meeting.  If, 
in  any  county,  a  few  men  were  actively  interested  in 
the  movement  that  was  being  engineered  at  Wheeling, 
they  could  with  little  difficulty  hold  a  mass  meeting 
and  obtain  election  as  members  of  the  local  committee 
of  safety.  The  delegates  to  the  June  convention  were 
chosen  in  various  ways,  sometimes  by  mass  meeting, 
sometimes  by  the  county  committee,  sometimes  appar- 
ently   by    self-appointment.      There    was    no    popular 

"West  Virginia  writers  have  stated  that  40,000  out  of  the  42,000 
votes  cast  in  the  northwestern  counties  were  against  secession  (1  \V. 
Va.  55),  but  the  vote  for  all  of  Virginia  as  announced  by  Governor 
Letcher  was  125,950  to  20,373.  As  McGregor  shows,  however,  doubt 
was  cast  on  the  correctness  of  the  returns  as  given  out  by  Letcher. 
(McGregor,  Disruption  oj  Virginia,  180.) 


THE  PARTITION  OF  VIRGINIA  441 

election  in  the  true  sense.^*'  In  one  instance  the 
Wheehng  committee  wrote  to  a  prominent  man  in 
Charleston,  stating  that  the  people  of  western  Virginia 
were  looking  to  their  old  leaders  for  counsel,  and  urging 
his  "attendance  as  a  member  of  the  convention  to  be 
held  on  the  11th  inst."  ^^  There  was  no  reference  to 
any  election  as  a  delegate.  The  whole  process  of  pre- 
paring for  this  Wheeling  convention  was  such  as  to  pro- 
mote the  selection  of  men  actively  interested  in  what 
the  convention  was  expected  to  do — i.e.,  lay  plans  for 
a  separate  State — rather  than  to  obtain  a  general  rep- 
resentation of  all  shades  of  opinion,^-  To  determine 
the  number  of   counties  "represented"  would  involve 


"A  Union  man  thus  wrote  to  Pierpoint  from  Wayne  County:  "Now 
it  is  well  known  that  had  not  the  people  of  Buffalo  Shoals  taken  the 
stand  [for  the  Union]  that  they  did,  no  Delegate  would  have  been 
sent  to  Wheeling  from  this  county.  Cabell  county  was  not  represented 
because  there  were  no  Northern  men  to  inform  the  people,  I  mean 
such  as  dared  to  act.  Now  an  election  cannot  be  held  in  this  county 
until  it  is  subdued  by  soldiers,  many  rebels  swearing  they  will  die 
first  rather  than  submit."  (John  Adams  to  F.  H.  Pierpoint,  Buffalo 
Shoals,  July  20,  1861 :    Pierpoint  Papers.) 

"Letter  from  the  office  of  the  Central  Committee,  Wheeling,  July 
1,  1861,  to  George  W.  Summers,  Charleston;     Pierpoint  Papers. 

"The  activity  of  county  committees  of  Unionists  in  organizing  the 
June  convention  is  illustrated  by  the  following  letter:  "We  the 
County  Committee  of  Cabell  County  do  certify  that  Edward  D. 
Wright  and  B.  D.  McGinnis  have  been  duly  appointed  Delegates  to 
represent  this  County  in  the  Union  Convention  of  Western  Virginia 
to  be  held  on  the  11th  of  June,  1861.  [Signed]  J.  C.  Plybun,  C.  G. 
Stephenson,  Isaiah  Ray,  S.  Hatton,  J.  Graham,  Committee."  The  fol- 
lowing letter  illustrates  the  mass  meeting  method  of  organization: 
"At  a  meeting  of  a  number  of  citizens  of  Loudoun  County,  Virginia, 
for  the  purpose  of  electing  delegates  to  a  convention  at  Wheeling  to 
form  a  provisional  government  for  the  State  of  Virginia,  [it  was] 
Resolved  first,  that  the  chairman  appoint  a  committee  of  five,  when 
the  following  names  were  announced  by  the  chair:  George  Townsend, 
T.  J.  McGaha,  Isaiah  Virts,  Conrad  Darr,  Daniel  Fry;  second,  that 
delegates  to  the  convention  be  elected,  when  the  following  gentlemen 
were  unanimously  elected:  W.  F.  Mercer,  D.  T.  Bond,  Thos.  B.  March, 
John  B.  Dutton.  On  motion,  the  meeting  adjourned.  B.  Kabrich, 
Pres.,  T.  J.  McGaha,  Sec.    June  23,  1861."    (Pierpoint  Papers.) 


S  •-  "S  ^  a  M  3 
*^  „•§  2     o  K' 


THE  PARTITION  OF  VIRGINIA  443 

discussion  as  to  what  constituted  representation/^  but 
even  if  we  accept  the  convention's  own  statement  that 
the  number  of  counties  represented  was  thirty-four/"* 
this  was  but  slightly  more  than  two-thirds  of  the  forty- 
eight  counties  constituting  West  Virginia  at  the  time 
of  admission,  while  the  major  portion  of  Virginia,  ad- 
hering as  it  did  to  the  Confederacy,  was  of  course  un- 
represented. It  is  evident,  therefore,  not  merely  that 
this  June  convention  was  revolutionary,  but  that,  con- 
sidered as  a  revolutionary  body,  it  was  in  no  sense  rep- 
resentative of  the  State  of  Virginia  for  which  it  pre- 
sumed to  act. 

Assuming  functions  appropriate  only  to  a  Virginian 
constitutional  convention,  this  body  of  men  from  the 
west,  meeting  at  Wheeling  on  June  11,  passed  an 
"ordinance  for  the  reorganization  of  the  State  govern- 

"In  July,  1863,  Senator  Carlile,  of  "restored  Virginia,"  informed  the 
United  States  Senate  that  the  June  convention  at  Wheeling  did  not 
fairly  represent  even  the  people  of  western  Virginia.  This  is  well 
brought  out  in  McGregor,  op.  cit.,  pp.  294-295. 

"  "The  number  of  counties  actually  represented  is  thirty-four.  .  .  , 
Several  of  the  delegates  escaped  from  their  counties  at  the  risk  of 
their  lives,  while  others  are  still  detained  at  home  by  force  or  menace 
against  them  or  their  families  and  property."  (Address  of  the  Second 
Convention,  Wheeling,  June  25,  1861 :  West  Virginia  Legislative  Hand- 
hook,  1916,  pp.  275-276.)  By  glancing  at  the  map  on  the  opposite 
page,  the  reader  will  have  a  graphic  representation  of  the  importance 
of  the  panhandle  and  its  vicinity  in  the  new-State  movement.  It  was 
from  the  counties  near  Pennsylvania  and  Ohio  that  the  active  separa- 
tionists  came;  while  in  contrast  to  this,  a  continuous  group  of  counties 
covering  about  half  the  area  of  the  new  State  had  no  participation  in 
the  convention  which  passed  the  "Wheeling  ordinance,"  but  were  in 
spite  of  this  fact  included  in  West  Virginia  as  ultimately  defined.  The 
people  had  no  opportunity,  county  by  county,  to  determine  whether 
they  would  adhere  to  Virginia  or  join  the  new  commonwealth;  but 
their  fate  was  determined  by  the  whole  vote  cast  within  the  bound- 
aries indicated  by  the  convention.  McGregor  states  that  this  plan 
was  adopted  to  avoid  "certain  rejection  in  at  least  two  thirds  of  the 
counties."  {Disruption  of  Virginia,  pp.  235-236.)  In  general  those 
opposed  to  separation  did  not  vote,  and  this  was  particularly  true  of 
secessionists.  (The  list  of  delegates  used  in  preparing  the  accompanying 
map  is  found  in  Lewis,  How  West  Virginia  Was  Made,  pp.  79-81.) 


444  THE  CONSTITUTION  UNDER  LINCOLN 

ment."  By  this  ordinance  it  was  provided  that  a  tem- 
porary government,  consisting  of  governor,  lieutenant 
governor,  attorney  general  and  council  of  five,  should 
be  appointed  by  the  convention  itself;  while  a  perma- 
nent government  was  to  be  created  by  requiring  an  oath 
of  loyalty  of  all  State,  county,  town  and  city  oflScials, 
members  of  the  legislature,  judges,  oflScers  of  militia, 
and  oflScers  and  privates  of  volunteer  companies  not 
mustered  into  the  service  of  the  United  States.  The 
oath  was  as  follows: 

I  solemnly  swear  (or  aflSrm)  that  I  will  support  the  Con- 
stitution of  the  United  States,  and  the  laws  made  in  pursuance 
thereof,  as  the  supreme  law  of  the  land,  anything  in  the  con- 
stitution and  laws  of  the  State  of  Virginia  or  in  the  ordinances 
of  the  [secession]  convention  at  Richmond  ...  to  the  con- 
trary notwithstanding;  and  that  I  will  uphold  and  defend  the 
government  of  Virginia  as  vindicated  and  restored  by  the 
convention  which  assembled  at  Wheeling  on  the  eleventh  day 
of  June,  eighteen  hundred  and  sixty-one. 

Where  the  oath  was  refused  by  any  elective  officer, 
his  office  was  to  be  declared  vacant  and  special  elections 
were  to  be  held  to  fill  the  vacancy.  Appointive  offices 
were  to  be  filled  at  once  by  the  governor. ^^ 

It  is  to  be  seen  that  by  this  ordinance  a  form  of 
government  was  devised  which,  while  drawing  its  sup- 
port exclusively  from  the  Unionist  element  of  the  State, 
claimed  to  be  the  only  legitimate  government  of  Vir- 
ginia. The  legal  fiction  thus  created  was  of  vital  im- 
portance in  the  whole  movement  for  the  creation  of 
the  new  commonwealth. 

"TFesi  Virginm  Legislative  Handhook,  1916,  pp.  26S-269.  There  was 
no  popular  ratification  of  tbe  far-reaching  acts  of  this  June  convention. 


THE  PARTITION  OF  VIRGINIA  445 

III 

If  space  suflficed,  it  would  be  of  interest  to  observe 
the  steps  taken  to  launch  the  "restored  government"  of 
Virginia  on  the  basis  of  the  paper  plan  drawn  up  by 
the  second  Wheeling  convention.  Extraordinary  con- 
ditions of  turbulence  and  uncertainty,  which  at  times 
verged  upon  anarchy,  confronted  the  Wheeling  gover- 
nor, Francis  H.  Pierpoint,  chosen  by  the  convention. 
The  approximate  collapse  of  civil  government  left  the 
country  open  to  bandits  and  guerrillas,  and  a  kind  of 
terrorism  characterized  the  coercive  methods  practiced 
by  both  sides.  A  Methodist  preacher  of  Boone  County 
wrote  that  the  disunion  party  was  too  strong  for  the 
Unionists  of  "that  Reagon."  "All  the  Judges,  Lawers, 
Shureffs  .  .  .  Clarks,  Meranchents,  politions  slave  hold- 
ers and  drunkerds,"  he  said,  "out  number  us  Consider- 
able; .  .  .  thay  have  bin  forming  Compneys  and  tak- 
ing men  and  women  and  swaring  them  into  the 
Suthem  Confedsy  and  not  to  give  infermation  or  feed 
eney  union  men  and  even  swaring  little  boys  to  give 
them  infermation."  ^^  He  added  that  his  own  home 
had  been  entered  by  armed  men  and  that  his  life  was 
"thertened  by  the  Rebbles."  A  citizen  of  Weston  wrote 
the  governor  that  the  rebels  in  Roane  and  Calhoun  had 
come  over  in  mass  on  the  Kanawha  River  and  were 
entering  the  houses  of  Unionists,  stripping  them  of 
household  goods,  even  cutting  up  bed  cord,  leading  off 
the  horses,  and  creating  general  confusion. ^'^  From 
Ironton,  Ohio,  came  a  letter  describing  conditions  in 
Cabell,  Wayne  and  adjoining  counties  where,  according 

"Robert  Hager  to  "Govener  Piarepoint  E.  S.  Q.,"  Gallipolis,  Ohio, 
July  30,  1861:     Pierpoint  Papers. 

"H.  H.  Withers  to  Governor  Pierpoint,  Weston,  Va.,  Nov.  9,  1861: 
ibid. 


446  THE  CONSTITUTION  UNDER  LINCOLN 

to  the  informant,  there  was  no  civil  authority,  no  law, 
no  protection  to  the  persons  and  property  of  either 
loyal  or  disloyal  citizens.  All,  he  said,  was  anarchy  and 
confusion. ^^ 

Reports  from  many  other  localities,  crowding  in  upon 
the  Pierpoint  administration,  told  the  same  story.  A 
"county  committee"  sent  word  from  Ritchie  Court 
House  that,  while  home  guards  were  being  formed  and 
a  Union  organization  was  being  effected  in  the  county, 
there  were  "no  mails"  and  the  committee  was  out  of 
touch  with  events.  Citizens  of  Fairfax  County  asked 
that  steps  be  taken  to  give  relief  from  the  "present 
condition  of  anarchy"  under  which  they  suffered.  Four 
hundred  citizens  of  Gilmer  County,  deploring  the  tur- 
bulent conditions  confronting  them,  with  "certain  reck- 
less individuals  lurking  in  the  woods  and  brush,  shoot- 
ing at  the  soldiers,  citizens,  etc.,  annoying  and 
endangering  the  lives  and  property  of  all  law-abiding 
citizens,"  signed  a  paper  pledging  to  each  other  "our 
lives,  our  fortunes  and  our  sacred  honor,"  and  resolv- 
ing that  they  would  exert  themselves  as  citizens  to 
maintain  social  order  and  bring  offenders  to  justice.  A 
somewhat  illiterate  citizen  of  Cabell  County  referred 
to  the  deplorable  condition  into  which  the  people  of 
that  region  were  thrown  by  depredations  and  outrages 
committed  by  armed  bands  that  were  ravaging  the  en- 
tire country  for  fifty  miles  distant,  and  appealed  for 
protection  from  these  "gorrilla"  companies.  A  large 
number  of  citizens  of  Sistersville  in  Tyler  County  peti- 
tioned for  like  protection,  reporting  that  they  could  no 
longer  look  for  protection  to  the  civil  authorities. 
Pleasants  County  was  reported  to  be  of  "questionable 
loyalty,"  and  one  of  its  inhabitants  wrote  that  it  was 

"A.  McCullough  to  Pierpoint,  Ironton,  0.,  Aug.  7,  1861:  ibid. 


THE  PARTITION  OF  VIRGINIA  447 

"difl5cult  to  tell  who  among  us  is  a  real  friend  of  the 
government."  Governor  Pierpoint's  brother,  Larkin 
Pierpoint,  wrote  from  Ritchie  Court  House  asking 
"Dear  Brother  Frank"  whether  he  had  better  go  with  a 
volunteer  company  that  was  being  formed  for  the  Union 
service,  saying  that  he  was  ready  to  fight  and  wanted 
to  do  his  duty  "if  I  know  what  it  is." 

Bandits  frequently  took  advantage  of  this  weakness 
of  civil  government,  and  for  protection  against  these, 
as  well  as  to  resist  the  secessionists,  "home  guards" 
were  organized  as  a  sort  of  impromptu  military  force; 
and  various  "battles"  were  fought  in  a  kind  of  neighbor- 
hood war  that  the  military  historians  do  not  record.  In 
all  this  violence  and  confusion  there  was  a  tendency 
to  doubt  each  man's  loyalty  until  proved;  rumor  mag- 
nified the  actual  turbulence  which  in  reality  was  bad 
enough;  and  honest  men  doubted  which  way  duty  led.^^ 

To  administer  oaths  and  hold  elections  for  the  "re- 
stored government"  of  Virginia  under  such  conditions 
was  a  difl&cult  task.  Many  refused  the  Wheeling  oath, 
being  uncertain  as  to  whether  the  government  would 
be  recognized  as  valid,  and  doubting  its  ability  to  es- 
tablish and  defend  itself  as  the  successor  of  the  old 
government  of  Virginia.^*'  There  is  much  significance 
in  the  letter  of  one  Joseph  Applegate  of  Wellsburg  who 


"These  details  are  taken,  passim,  from  the  Pierpoint  manuscripts  in 
the  Virginia  State  Library. 

'"The  Richmond  legislature  passed  various  measures  against  the 
"usurped  government"  under  Pierpoint,  and  many  felt  anxious  as  to 
consequences  in  case  of  Confederate  success.  (Acts  of  the  Gen.  As- 
sembly oj  Va.  [Called  Session,  1862,  Richmond],  p.  11;  ibid.  [Ad- 
journed Session,  1863],  p.  88.)  A  citizen  of  Wellsburg  wrote  to  Gov- 
ernor Pierpoint  that  he  was  not  prepared  to  take  the  Wheeling  oath. 
"Your  government  has  not  been  recognized,"  he  said,  "neither  have  you 
shown  an  ability  to  establish  and  defend  the  government  or  the 
people  thereof  as  against  the  old  government."  (0.  W.  Langfitt  to 
Pierpoint,  July  8,  1861:     Pierpoint  Papers.) 


448   THE  CONSTITUTION  UNDER  LINCOLN 

wrote  to  the  Wheeling  governor:  "I  resign  the  com- 
mission I  received  of  you  ...  to  swear  the  ofl&cers  of 
the  county  of  Brooke  on  account  of  reasons  known  al- 
ready to  you."  ^^  Where  possible,  advantage  was  taken 
of  Federal  military  aid;  and  one  of  Pierpoint's  advisers 
urged  that  the  oath  be  pressed  in  the  presence  of  the 
army,  for  ''should  it  be  removed,"  he  said,  "ofiBcehold- 
ers  may  refuse  to  take  the  oath,  hold  on,  and  rebel 
against  your  authority."  ^^ 

To  round  out  the  organization  of  the  Wheeling  gov- 
ernment with  suitable  officials  in  the  various  counties 
was  therefore  a  serious  undertaking.  The  very  condi- 
tions under  which  elections  were  held  to  fill  the  offices 
of  those  refusing  the  Wheeling  oath  were  such  as  to 
deprive  secessionists  of  a  ballot,  since  no  secessionist 
could  qualify  for  office  holding,  and  naturally  the  elec- 
tions were  regarded  as  purely  L^nionist  affairs.  Se- 
cessionists, therefore,  did  not  ordinarily  vote  at  all; 
and  where  possible  they  actively  obstructed  the  elec- 
tions, regarding  them  as  illegal.  The  presence  of  troops 
was  frequently  necessary  for  the  holding  of  elections 
(which  in  many  of  the  counties  were  conducted  in  but 
a  part  of  the  voting  places),  and  it  was  often  difficult  to 
find  a  sufficient  number  of  Union  men  who  were  capable 
of  discharging  the  duties  of  the  various  offices.  In 
some  cases  Unionist  officers  when  elected  found  them- 
selves unable  to  enforce  the  laws  or  collect  the  taxes. 

Special  interest  attaches  to  the  legislative  branch  of 
this  "restored  government."  By  the  Wheeling  ordinance 
of  June  19,  the  legislature  of  Virginia  was  made  to 
consist  of  all  members  chosen  on  May  23  who  would 
take  the  test  oath,  together  with  additional  members 
specially  chosen   to  take  the  places  of  those   who  re- 

"  Letter  of  Joseph  Applegate,  June  22,  1861 :     Pierpoint  Papers. 
•"J.  S.  Carlile  to  Pierpoint,  June  26,  1861:     ibid. 


THE  PARTITION  OF  VIRGINIA  449 

fused  the  oath.  When  the  first  legislature  of  the  "re- 
stored government"  met  in  special  session  on  July  1, 
1861,  under  call  of  Governor  Pierpoint,  only  twelve 
days  had  elapsed  since  the  passage  of  the  ordinance 
creating  the  new  government.  Obviously  this  was  in- 
sufficient for  the  completion  of  the  various  steps  neces- 
sary for  the  fulfillment  of  that  ordinance — i.e.,  the  ad- 
ministering of  the  oath;  the  submission  of  evidence  of 
refusal  to  take  the  oath;  the  issuing  of  writs  vacating 
the  offices  of  non-jurors  and  providing  special  elections 
to  fill  the  vacancies;  due  pubhcation  of  such  coming 
elections  for  the  information  of  persons  entitled  to  vote; 
the  appointing  of  special  commissioners  of  election  in 
those  counties  in  which  the  sheriffs  refused  to  comply 
with  the  ordinance;  the  actual  holding  of  the  elections 
in  the  different  precincts;  the  counting  of  the  votes;  the 
assembling  of  the  returns;  and  the  preparation  of  cer- 
tificates showing  who  were  elected. 

When  one  looks  closely  into  the  personnel  of  the  "re- 
stored legislature,"  the  first  fact  to  claim  notice  is  that, 
in  large  part,  the  membership  of  the  June  convention 
and  that  of  the  "restored"  legislature  were  identical. 
The  May  convention  had  "recommended"  that  those 
senators  and  delegates  elected  to  the  general  assembly 
on  May  23  "who  concur  [red]  in  the  views  of  this  con- 
vention" should  have  seats  in  the  coming  June  conven- 
tion. Thus  men  who  had  been  chosen  as  members  of 
a  legislature  which  under  the  old  Virginia  constitution 
must  meet  in  Richmond  and  contain  representatives 
from  the  whole  State,  became  members  of  a  convention 
which  reorganized  Virginia's  government,  putting  it 
under  the  control  of  a  minor  part  of  the  State;  and 
then  the  same  men  served  in  the  new  legislature  that 
was  constituted  by  their  own  act  of  reorganization. 

Theoretically,  according  to  the  method  of  the  reorgan- 


450  THE  CONSTITUTION  UNDER  LINCOLN 

izers,  there  should  have  been  in  the  "restored"  legis- 
lature loyal  members  from  every  county  in  the  State, 
or  at  least  enough  loyal  members  to  constitute  a 
quorum.  Little  is  said  in  the  various  histories  of  West 
Virginia  as  to  the  actual  membership  of  this  reorgan- 
ized legislature,  but  light  on  this  subject  may  be  ob- 
tained from  the  rather  inaccessible  journals  of  the 
various  sessions.  The  journal  of  the  House  of  Delegates 
for  the  extra  session  of  July,  1861,  reveals,  on  the  fif- 
teenth day  of  the  session,  a  membership  consisting  of 
twenty-nine  delegates,  representing  thirty  counties, 
while  the  total  number  of  counties  in  Virginia  at  that 
time  was  149  and  the  constitutional  membership  of 
the  lower  house  was  152.-^  Only  two  members  had 
traveled  farther  than  two  hundred  miles  to  attend  the 
session;  and  all  the  members  except  these  two  were 
from  the  western  portion  of  the  State.  The  report  of 
the  committee  on  privileges  and  elections  was  given 
quite  loosely.  It  merely  listed  the  men  "claiming  seats 
as  delegates,"  noted  that  the  committee  "believed"  the 
said  delegates  to  be  "duly  elected  and  entitled  to  their 
seats,"  and  then  admitted  that  members  from  only  sev- 
enteen counties  had  presented  regular  certificates  of 
election.  The  only  action  taken  on  this  report  on  mem- 
bership was  to  lay  it  on  the  table.^^  The  journal  of 
the  Senate  for  this  session  listed  only  eight  names  as 
members,  though  the  Virginia  Senate  should  have  num- 
bered fifty.2« 

**  Journal  of  the  House  of  Delegates  of  Virginia  (Extra  Session  be- 
ginning July  1,  1861,  Wheeling),  47  et  seq. 

**Ibid.,  pp.   47-48. 

"Journal  of  the  Senate  of  Virgiriia  (Extra  Session  commencing  July 
1,  1861,  Wheeling),  25. 


THE  PARTITION  OF  VIRGINIA  451 


IV 

The  "reorganized"  legislature  did  not  deal  at  once 
with  the  question  of  forming  a  new  State,  leaving  this 
matter  for  the  time  to  the  convention  which  had  closed 
its  session  on  June  25,  1861,  adjourning  to  meet  on 
August  6.  The  measure  of  chief  importance  taken  by 
the  legislature  in  its  special  session  of  July,  1861,  was 
the  election  of  Waitman  T.  Willey  and  John  S.  Carlile 
as  United  States  Senators  from  Virginia  to  take  the 
seats  of  James  M.  Mason  and  R.  M.  T.  Hunter  whose 
places  had  been  vacated.-^ 

On  reassembling,  the  convention  passed  on  August  20 
the  "Wheeling  ordinance,"  which  provided  as  follows:  ^^ 

Whereas  it  is  represented  to  be  the  desire  of  the  people  in- 
habiting the  counties  hereinafter  mentioned  to  be  separated 
from  this  commonwealth,  and  be  erected  into  a  separate  State, 
and  admitted  into  the  union  of  States,  and  become  a  member 
of  the  government  of  the  United  States': 

The  people  of  Virginia,  by  their  delegates  assembled  in  con- 
vention at  Wheeling,  do  ordain  that  a  new  State,  to  be  called 
the  State  of  Kanawha,  be  formed  and  erected.  .  .  .  [The 
boundaries  of  the  proposed  State  were  then  indicated  and  the 
counties  enumerated.] 

The  ordinance  further  provided  for  an  election,  to  be 
held  on  the  24th  of  October  within  the  boundaries  of 
the  proposed  State,  in  which  the  people  should  vote 
for  or  against  the  new  State,  and  should  also  choose 
delegates   to   a  constitutional  convention.     When   the 

'"Journal  of  the  House  of  Delegates  of  Virginia  (Extra  Session  com- 
mencing July  1,  1861,  Wheeling),  32;  Journal  of  the  Senate  (same  ses- 
sion), 24. 

"  West  Virginia  Legislative  Handbook,  1916,  pp.  280-283. 


452  THE  CONSTITUTION  UNDER  LINCOLN 

election  was  held,  18,408  votes  were  announced  as  hav- 
ing been  cast  for  the  new  State  and  781  against  it.-^ 

The  next  step  was  the  framing  of  a  constitution  for 
the  new  commonwealth.  The  delegates  chosen  in  Octo- 
ber met  at  Wheeling  on  November  26  and  by  February 
18  they  had  completed  an  instrument  of  government, 
dropping  the  picturesque  name  "Kanawha"  and  sub- 
stituting "West  Virginia."  On  April  3  the  people  of 
the  region  proposed  for  the  new  State  voted  on  the 
constitution,  the  votes  for  ratification  numbering 
18,862  to  514  for  rejection.-^ 

It  was  at  this  stage  of  the  proceedings  that  the  "re- 
stored legislature"  gave  its  consent  to  the  formation  of 
the  new  State.  This  was  done  by  an  act  passed  on 
May  13,  1862.30 

That  clause  of  the  Constitution  of  the  United  States 
which  forbids  the  erection  of  a  new  State  within  the 
jurisdiction  of  an  existing  State  without  the  consent 
of  the  legislature  of  such  State  was  thus  technically  or 
nominally  complied  with;  but  the  "Virginia  legislature" 
which  gave  this  consent  consisted  of  about  thirty-five 
members  in  the  lower  house  and  ten  in  the  upper  house, 

*■  This  was  the  vote  officially  announced.  McGregor  analj'zes  it  and 
advances  the  view  that  it  does  not  represent  the  sentiment  of  the 
people  of  western  Virginia.     (McGregor,  op.  cit.,  p.  255.) 

"Virgil  A.  Lewis,  How  West  Virginia  Was  Made,  321.  Senator  Car- 
lile,  referring  to  the  process  of  constitution-making  for  the  new  State, 
pointed  out  that  in  one  county  of  about  800  voters  there  were  only 
76  votes  for  the  delegate  to  the  constitutional  convention.  In  another, 
about  400  out  of  1200  votes  were  cast.  The  pojiular  vote  on  the  con- 
stitution, he  showed,  numbered  only  about  19,000  as  compared  to  a 
normal  vote  of  47,000.  {Cong.  Globe,  37  Cong.,  2  sess.,  pp.  3313-14, 
and  37  Cong.,  3  sess.,  p.  54.)  McGregor  points  out  that  the  records  of 
the  constitutional  convention  for  the  new  State  were  not  printed  be- 
cuu.se  "the  discus^^ion  had  revealed  .«o  jilainly  the  opposition  of  the 
people  of  West  Virginia  both  to  the  North  and  to  the  new  State  that 
the  publication  of  the  debates  might  interfere  with  the  admission  of  the 
State."     (McGregor,  op.  cit.,  ix.) 

^^  Acts  of  the  Gen.  Assembly  (E.\tra  Sess.,  Wheeling,  May,  1862),  Ch.  i. 


THE  PARTITION  OF  VIRGINIA  453 

while  the  full  membership  according  to  the  Virginia 
constitution  should  have  been  one  hundred  fifty-two 
delegates  and  fifty  senators.  With  the  exception  of  the 
"eastern  shore"  and  two  counties  opposite  Washington, 
the  constituencies  represented  in  this  legislature  were 
entirely  limited  to  the  counties  of  the  northwest.  Even 
in  the  northwest  many  counties  were  without  repre- 
sentation, while  two-thirds  of  the  State — i.e.,  Confed- 
erate Virginia — was  entirely  unrepresented.  To  say  that 
in  this  way  "Virginia"  gave  her  consent,  is  to  deal  in 
theory  and  fiction  and  to  overlook  realities. 


The  Federal  Government  was  naturally  called  upon 
to  recognize  and  assist  the  "loyal"  government  under 
Pierpoint.  At  the  very  outset  President  Lincoln  gave 
assurance  of  his  support  and  the  War  Department  rec- 
ognized the  Wheeling  government  as  entitled  to  an 
appropriation  from  the  Federal  treasury  under  the  act 
of  July  31,  1861,  by  which  financial  assistance  was  to 
be  extended  for  the  protection  of  loyal  citizens  in  States 
which  had  seceded.^^  That  President  Lincoln's  en- 
couraging attitude  toward  Pierpoint  at  this  stage  did 
not  necessarily  involve  approval  of  the  separate  State 
movement  is  shown  by  the  President's  comparison  of 
Pierpoint's  case  with  that  of  Johnson  in  eastern  Ten- 


"  Sec.  of  War  Cameron  to  Daniel  Lamb,  Oct.  30,  1861 :  Pierpoint 
Papers.  While  claiming  Federal  benefits,  the  Wheeling  government 
declined  to  assume  Virginia's  quota  of  the  Federal  direct  tax  of  1861 
on  the  ground  that  the  collection  of  the  tax  "when  three-fourths  of  the 
white  population,  and  nearly  all  the  free  negroes  and  slaves,  are  be- 
yond our  reach,  would  be  not  only  unjust,  but  impossible."  {Journal 
of  the  Senate  of  Virginia  [Regular  Session,  Wheeling,  December  2, 
1861],  pp.  48,  89.) 


454  THE  CONSTITUTION  UNDER  LINCOLN 

nessee  and  of  Gamble  in  Missouri  to  whom  similar  Fed- 
eral assistance  had  been  extended.^- 

When  Carlile  and  Willey,  with  credentials  from 
Wheeling,  applied  in  the  United  States  Senate  for  ad- 
mission as  senators  from  Virginia,  conservative  men 
objected,  urging  that  the  real  government  of  Virginia 
was  at  Richmond,  not  Wheeling,  and  that  on  July  9, 
when  certificates  of  election  of  these  men  were  issued, 
no  vacancy  existed,  since  Hunter  and  INIason  were  not 
expelled  until  July  12.  The  general  attitude  of  the 
Senate,  however,  was  that  they  "should  not  stick  in 
the  bark  as  to  dates,"  and  that  any  hesitancy  in  grasp- 
ing the  hands  of  those  whose  hearts  were  for  the  Union 
would  be  unworthy  of  the  hour.  A  vote  to  refer  the 
credentials  of  these  Senators  to  the  Committee  on  the 
Judiciary  failed,  and  the  Senators  were  admitted  on 
July  13,   1861.33 

When  the  "West  Virginia  bill"  (for  the  admission  of 
the  new  State  into  the  Union)  was  discussed  in  Con- 
gress, considerable  opposition  to  the  project  was  de- 
veloped.3"*     The  invalidity  of  the  Pierpoint  government 

^Daniel  Lamb  to  Pierpoint,  Sept.  19,  1861:     Pierpoint  Papers. 

"  Cong.  Globe,  July  13,  1861,  37  Cong.,  1  sess.,  p.  109.  W.  F.  Mercer, 
Union  candidate  of  Loudoun  County  for  the  Virginia  legislature,  wrote 
to  Pierpoint  that  he  claimed  election  in  spite  of  the  fact  that  his  op- 
ponent received  one  hundred  more  votes  than  he  did,  and  added: 
"If  we  are  ruled  down  to  strict  parliamentary  law,  we  will  be  left 
without  representation;  but  if  the  policy  of  the  Senate  of  the  United 
States  in  the  case  of  Messrs.  Carlile  and  Willey  obtains,  there  will 
be  no  difficulty  in  the  case."  (Mercer  to  Pierpoint,  Nov.  26,  1861: 
Pierpoint  Papers.) 

"  Representative  Joseph  Segar  of  Virginia  opposed  the  new  State  bill 
because  of  its  weakening  effect  upon  the  "restored  government."  "As 
the  matter  now  stands,"  he  said,  "we  have  a  loyal  government  for  the 
whole  of  Virginia.  .  .  .  But  pass  this  new  State  bill  and  we  have  a 
government  only  for  the  northwest  portion.  All  the  rest  is  left  to 
rebellion  or  revolution,  or,  what  is  worse,  no  law  at  all.  ...  I  am  un- 
willing to  give  up  West  Virginia  to  a  separate  organization,  because  it 
is  a  Union  nucleus  around  which  a  great  Union  mass  will  ultimately 
gather."     {Cong.  Globe,  Dec.  10,  1862,  37  Cong.,  3  sess.,  p.  55.) 


THE  PARTITION  OF  VIRGINIA  455 

was  stressed  and  it  was  urged  that  the  administration 
was  obtaining  too  much  advantage  by  the  creation  of 
four  senators  (two  each  for  Virginia  and  West  Vir- 
ginia) together  with  fifteen  electoral  votes  for  Virginia 
and  six  or  eight  for  West  Virginia.  It  was  felt  that 
the  temptation  to  repeat  the  process  in  other  seceded 
States  might  prove  too  strong  to  be  resisted.  Critten- 
den of  Kentucky  refused  to  accept  the  view  that  old 
Virginia  no  longer  existed,  asserting  that  the  close  of 
the  rebellion  would  restore  the  State  to  the  Union  and 
that  it  should  be  returned  whole,  not  divided.  Those 
forming  the  State,  he  said,  were  the  same  as  those  con- 
senting to  its  erection.  "It  is  the  party  applying  for 
admission  consenting  to  the  admission.  That  is  the 
whole  of  it."  35 

Those  favoring  the  bill  urged  that,  as  the  government 
of  Virginia  had  lapsed  because  of  the  illegal  action  of 
the  authorities  at  Richmond,  the  loyal  people  of  west- 
em  Virginia  were  justified  in  taking  possession  of  the 
government;  but  as  a  rule  those  who  spoke  for  the 
new  State  dealt  in  practical  considerations  rather  than 
in  constitutional  arguments.  One  of  the  frankest  state- 
ments was  that  of  Thaddeus  Stevens.  He  made  it  clear 
that  he  was  not  deluded  by  the  idea  that  the  State 
was  being  admitted  in  pursuance  of  the  Constitution. 
The  argument  of  constitutionality  he  considered  a 
"forced  argument  to  justify  a  premeditated  act."    The 

'"Cong.  Globe,  Dec.  9,  1862,  37  Cong.,  3  sess.,  p.  47. 


456  THE  CONSTITUTION  UNDER  LINCOLN 

majority  of  the  people  of  Virginia  constituted  the  State 
of  Virginia  even  though  the  individuals  thereof  had 
committed  "treason."  Though  secession  was  treason, 
it  was,  so  far  as  the  State  corporation  was  concerned, 
a  valid  act  and  governed  the  State.  We  may  admit 
West  Virginia,  he  said,  not  as  a  constitutional  measure, 
but  "under  our  absolute  power  which  the  laws  of  war 
give  us  in  the  circumstances  in  w^hich  we  are  placed. 
I  shall  vote  for  this  bill,"  he  said,  "upon  that  theory, 
and  upon  that  alone;  for  I  will  not  stultify  myself  by 
supposing  that  we  have  any  warrant  in  the  Constitution 
for  this  proceeding."  ^^ 

When  the  bill  came  to  a  vote,  there  were  23  yeas 
and  17  nays  in  the  Senate,^'^  Senator  Carlile  (one  of 
the  Senators  from  restored  Virginia)  voting  in  the  nega- 
tive.   In  the  House  the  vote  stood  96  to  55.^^ 


VI 

When  the  West  Virginia  bill  was  presented  to  Presi- 
dent Lincoln  he  was  placed  in  a  painful  dilemma.  The 
thought  of  disrupting  the  Old  Dominion  caused  him 
much  distress,  but  it  was  represented  to  him  that  the 
vetoing  of  the  bill  would  discourage  the  Union  move- 
ment in  western  Virginia  and  seriously  antagonize  the 
Congress.     The   President  called  the   members   of  his 

''Ibid.,  p.  50. 

"  Among  the  active  promoters  of  the  bill  in  the  Senate  were  Wade  of 
Ohio,  Collamer  of  Vermont  and  Wiiley  of  "Virginia."  Border-State 
senators  such  as  Bayard  and  Saulsbury  of  Delaware,  Powell  and  Davis  of 
Kentucky,  and  Kennedy  of  Mar>-land,  and  conservatives  such  as 
Browning  of  Illinois,  opposed  the  measure.  Sumner  opposed  the  bill 
because  his  amendment  providing  immediate  emancipation  failed  and  he 
objected  to  a  "new  slave  State."  Trumbull  voted  nay  for  the  same 
reason  and  also  because  he  thought  the  new  State  would  weaken  the 
cxi.sting  Unionist  government  in  Virginia.  For  the  vote,  see  Cong. 
Globe,  37  Cong.,  2  sess.,  p.  3320. 

"  Cong.  Globe,  37  Cong.,  3  sess.,  p.  59. 


THE  PARTITION  OF  VIRGINIA  457 

Cabinet  into  consultation  on  the  subject;  and,  at  the 
suggestion  of  Attorney  General  Bates,^^  written  opin- 
ions from  every  Cabinet  secretary  were  requested. 
Each  member  read  his  opinion  aloud  in  full  council  and 
gave  it  to  the  President.  The  President  then  read  the 
paper  which  he  had  prepared  on  the  subject. 

The  legality  and  expediency  of  this  important  meas- 
ure of  state  were  thoroughly  discussed  in  these  papers. 
Seward,  Chase  and  Stanton  favored  the  separation. 
Seward  argued  that  the  United  States  could  not  recog- 
nize secession  and  must  recognize  loyalty.  The  "re- 
stored government,"  he  held,  was  "incontestably  the 
State  of  Virginia."  ^« 

Chase  contended  that  in  case  of  insurrection  the  loyal 
element  must  be  taken  to  constitute  the  State,  that  the 
denial  of  powers  of  government  to  this  loyal  element 
on  the  ground  that  men  clothed  with  official  responsi- 
bility had  joined  in  rebellion  against  their  country 
would  be  absurd,  that  the  legislature  which  gave  its 
consent  to  the  formation  of  the  new  State  "was  the 
true  and  only  lawful  legislature  of  the  State  of  Vir- 
ginia," and  that  nothing  was  wanting  to  make  the  pro- 
ceeding constitutional.  Referring  to  the  fear  lest  the 
case  of  West  Virginia  would  form  a  precedent,  thus 
involving  "the  necessity  of  admitting  other  States  under 
the  consent  of  extemporized  legislatures  assuming  to  act 
for  whole  States  though  really  representing  no  impor- 
tant part  of  their  territory,"  he  said  that  such  appre- 
hensions were  groundless,  since  no  parallel  case  existed. 
This  portion  of  his  remarks  seemed  to  hint  that  such 
a  precedent  would  have  been  considered  undesirable.*^ 

"Bates  to  Stanbery,  St.  Louis,  Aug.  3,   1867:     Attorney   General's 
papers. 
^"Nicolay  and  Hay,  Lincoln,  VI,  300-301. 
"  Ibid.,  pp.  301-303. 


458   THE  CONSTITUTION  UNDER  LINCOLN 

Stanton  briefly  stated  his  reasons  for  holding  that 
the  West  Virginia  bill  was  constitutional.  "The  Con- 
stitution," he  said,  "expressly  authorizes  a  new  State 
to  be  formed  .  .  .  within  the  jurisdiction  of  another 
State.'*^  The  act  of  Congress  is  in  pursuance  of  that 
authority.  The  measure  is  sanctioned  by  the  legislature 
of  the  State  within  whose  jurisdiction  the  new  State 
is  formed.  ...  I  have  been  unable  to  perceive  any  point 
on  which  the  act  .  .  .  conflicts  with  the  Constitution." 

The  negative  side  was  maintained  by  Welles,  Blair, 
and  Bates.  Welles  could  not  close  his  eyes  to  the  fact 
that  the  organization  claiming  to  be  the  State  of  Vir- 
ginia was  nothing  more  than  a  provisional  government, 
and  that  it  was  "composed  almost  entirely  of  .  .  . 
loyal  citizens  .  .  .  beyond  the  mountains."  While  ad- 
mitting that  a  temporary  recognition  of  this  govern- 
ment might  be  proper,  yet,  he  said,  "When  .  .  .  this 
loyal  fragment  goes  farther,  and  .  .  .  proceeds  ...  to 
erect  a  new  State  within  the  jurisdiction  of  the  State 
of  Virginia,  the  question  arises  whether  this  proceeding 
is  regular,  right,  and,  in  honest  faith,  conformable  to 
.  .  .  the  Constitution."  ^^  Turning  to  his  diary,  we 
find  the  question  answered  in  the  following  words: 
"The  requirements  of  the  Constitution  are  not  complied 
with,  as  they  in  good  faith  should  be,  by  Virginia,  by 
the  proposed  new  State,  nor  by  the  United  States."  ** 

Blair  characterized  the  argument  that  Virginia  had 
given  her  consent  as  "confessedly  merely  technical." 
"It  is  well  known,"  he  said,  "that  the  elections  by  which 
the  movement  [for  separation]  has  been  made  did  not 
take  place  in  more  than  a  third  of  the  counties  of  the 
State."     He  considered  the  dismemberment  highly  ir- 

**  Stanton  Papers,  X,  No.  52066. 

"Nicolay  and  Hay,  Lincoln,  VI,  304-306. 

**  Diary  o]  Gideon  Welles,  I,  191.     (Dec.  4,  1862.) 


THE  PARTITION  OF  VIRGINIA  459 

regular  and  "unjust  to  the  loyal  people  in  the  greater 
part  of  the  State,  who  [were]  held  in  subjection  by  rebel 
armies"  and  whose  consent  was  not  obtained.^^ 

Special  importance  attaches  to  the  opinion  of  Edward 
Bates  because  it  was  the  ofl5cial  opinion  of  the  Attor- 
ney General  and  because  its  analysis  of  the  legal  points 
involved  was  much  more  elaborate  than  that  of  any 
other  Cabinet  minister.^^  Bates  contended  that  States 
must  exist  before  they  can  be  admitted  into  the  Union. 
Congress,  he  said,  has  no  power  to  make  States,  for  a 
free  American  State  can  be  made  only  by  its  own  people. 
The  duty  of  the  United  States  toward  the  faithful  ele- 
ment in  Virginia,  as  he  saw  it,  was  to  restore  Virginia 
to  the  Union  as  she  was  before  the  insurrection.  The 
restored  government  was  merely  a  provisional  govern- 
ment intended  as  a  patriot  nucleus.  No  real  "legisla- 
ture of  Virginia,"  according  to  his  view,  had  consented 
to  the  separation. 

Such  was  Bates'  official  opinion.  His  unofficial  and 
confidential  statements  on  the  subject  were  more  em- 
phatic. He  wrote  in  his  diary  of  "a  few  reckless 
Radicals,  who  manage  those  helpless  puppets  (the  straw 
Governor,  &  Legislature  of  Virginia)  as  a  gamester  man- 
ages his  marked  cards,"  and  added:  "I  have  warned  one 
member  of  W.  V.  of  the  fate  preparing  for  his  misbe- 
gotten, abortive  State.  These  Jacobins,  as  soon  as  they 
get,  by  the  Alexandria  juggle,  an  anti-slavery  Consti- 
tution for  Virginia,  will  discover  that  West  Virginia  was 
created  without  authority — and  then,  having  no  further 
use  for  the  political  bantling,  will  knock  the  blocks 
from  under,  and  let  it  slide.  For,  already,  they  begin  to 
be  jealous  of  the  double  representation  in  the  Senate." 


"Nicolay  and  Hay,  Lincoln,  VI,  306-308. 
""Opins.  Attys.  Gen.,  X,  426-435. 


460  THE  CONSTITUTION  UNDER  LINCOLN 

Again  Bates  wrote  that  the  West  Virginia  bill  was  pre- 
cipitately passed  with  "the  most  glaring  blunders"  be- 
cause its  sponsors  feared  discussion  and  dreaded  "any 
revival  among  the  M.  C.s  of  a  sense  of  justice  and 
decency."  *'' 

There  is  evidence  that  President  Lincoln  disap- 
proved of  the  disruption  of  the  State/^  but  his  objec- 
tions were  overborne  by  the  conviction  that  the  admis- 
sion of  West  Virginia  was  necessary  because  of  its  effect 
upon  the  outcome  of  the  war.  No  legal  consideration, 
he  said  in  his  written  opinion,  is  ever  given  to  those 
who  do  not  choose  to  vote,  and  in  this  case  those  who 
did  not  vote  were  not  merely  neglectful  of  their  rights, 
but  in  rebellion  against  the  Government.  "Can  this 
government  stand,"  he  asked,  "if  it  counts  those  against 
it  the  equals  of  those  who  maintain  loyalty?"  If  so, 
then  he  thought  that  their  treason  enhanced  the  con- 
stitutional value  of  the  disloyal.  "Without  braving 
these  absurd  conclusions,"  he  said,  "we  cannot  deny  that 
the  body  which  consents  to  the  admission  of  West  Vir- 
ginia is  the  Legislature  of  Virginia."  He  added  that 
more  would  be  gained  than  lost  by  admitting  the  new 
State;  and,  with  this  practical  consideration  uppermost 
in  his  mind,  he  signed  the  bill.^® 

Since  the  constitution  of  the  new  State  had  not  dealt 
with  slavery  in  a  manner  satisfactory  to  Congress,  the 
bill  as  passed  provided  that  the  people  of  West  Vir- 

"MS.  Diary  of  Edward  Bates,  Dec.  15,  1S64;  Oct.  12,  1865. 

"Senator  Browning  of  Illinois,  a  close  friend  of  Lincoln,  referred 
in  his  diary  to  Lincoln's  "distress"  at  the  West  Virginia  bill;  and  this 
statement  as  to  the  President's  attitude  is  confirmed  by  Gideon  Welles. 
(MS.  Diary  of  Orville  H.  Browning,  Dec.  15,  1862;  Diary  of  Gideon 
Welles,  I,  191.)  Senator  Willey  wrote  to  Pier]ioint:  "We  have  great 
fears  that  the  President  will  veto  the  new  State  bill."  (W.  T.  Willey 
to  Pierpoint,  Washington,  Dec.  17,  1862:     Pierpoint  Papers.) 

*"  Lincoln's  opinion  is  given  in  full  in  Nicolay  and  Hay,  Lincoln,  VI, 
309-311. 


THE  PARTITION  OF  VIRGINIA  461 

ginia  should  vote  upon  a  gradual  emancipation  clause 
to  be  inserted  in  the  State  constitution ;  and  the  ratifica- 
tion of  this  clause  was  made  a  condition  of  the  admis- 
sion of  the  State.  All  of  the  conditions  having  been 
met,  President  Lincoln,  on  April  20,  1863,  issued  a  proc- 
lamation declaring  West  Virginia  to  be  admitted  into 
the  Union. ^"^  As  this  proclamation  was  to  take  effect 
in  sixty  days,  the  legal  birthday  of  West  Virginia  was 
June  20,  1863. 

VII 

When  the  new  State  government  was  launched  at 
Wheeling,  the  "restored  government"  transferred  its  cap- 
ital to  Alexandria,  situated  in  a  protected  position 
across  the  Potomac  from  Washington.  From  1863  to 
the  end  of  the  war,  this  straw  government  controlled 
hardly  more  than  the  cities  and  environs  of  Alexandria 
and  Norfolk,  together  with  that  exposed  peninsula  con- 
sisting of  the  counties  of  Northampton  and  Accomac, 
known  as  the  "eastern  shore."  The  chief  raison  d'etre 
of  this  government  (which  had  drawn  its  support  almost 
entirely  from  the  west)  had  been  to  give  the  consent 
of  Virginia  to  the  erection  of  the  new  State;  but  after 
this  purpose  had  been  accomplished,  it  bravely  main- 
tained the  legal  fiction  that  it  was  still  the  government 
of  Virginia. 

With  a  new  capital  and  a  new  official  family,  Mr. 
Pierpoint  addressed  himself  to  the  task  of  "reorganiz- 
ing" those  few  districts  in  the  eastern  portion  of  the 
State  in  which  his  influence  could  be  felt.  Offices  here 
were  declared  vacant  because  of  disloyalty;  vacancies 
were  filled  by  appointment  or  special  election ;  and  mem- 

•"  U.  S.  Stat,  at  Large,  XIII,  731. 


462   THE  CONSTITUTION  UNDER  LINCOLN 

bers  of  Congress  were  sent  from  congressional  districts 
within  the  domain  of  the  restored  State. 

One  of  the  important  acts  of  the  Alexandria  govern- 
ment was  the  making  of  a  new  constitution  for  Vir- 
ginia. This  was  done  by  a  constitutional  convention 
of  fifteen  delegates  which  met  at  Alexandria  in  Febru- 
ary, 1864.  By  the  new  constitution  slavery  was  abol- 
ished; loyalty  to  the  "restored  government"  and  the 
United  States  was  required;  and  Confederate  oflBce  hold- 
ers were  disfranchised.^^ 

Never  was  the  vitality  of  a  legal  fiction  better  illus- 
trated than  by  this  attenuated  government  which,  de- 
spite the  lack  of  funds,  buildings,  troops,  territory  and 
all  the  material  evidences  of  political  power,  stoutly 
defended  its  paper  existence.  It  was  a  government 
whose  legislature  had  no  capitol  building  in  which  to 
meet,  whose  courts  did  not  function,  whose  prisoners 
and  insane  patients  had  to  be  sent  to  Ohio  or  Penn- 
sylvania, and  whose  governor,  after  four  months  in 
Alexandria,  was  still  unable  to  obtain  a  dwelling  for 
himself  and  family.  Pierpoint's  status  was  not  well 
understood  and  in  the  letters  which  he  received  there 
is  an  amusing  variety  of  titles.  He  was  variously  ad- 
dressed as  "Governor  of  Loyal  Virginia,"  "Governor  of 
East  Virginia,"  "Military  Governor  of  Eastern  Vir- 
ginia," "the  Gov  verner  of  west  virginey,"  and  "Gover- 
nor of  new  Virginia."  To  cheer  a  governor  with  so  tenu- 
ous a  hold  on  oflfice,  Governor  Boreman  of  West  Vir- 
ginia wrote  encouraging  letters,  dispelling  the  fear  that 
Picrpoint  would  be  liable  because  of  illegal  acts;  urging 
that  the  process  of  creating  West  Virginia  would  never 
be  declared  void  as  Pierpoint  suspected;  assuring  him 


"  Eckenrode,  Political  History  of  Virginia  during  the  Reconstruction, 
19-22. 


THE  PARTITION  OF  VIRGINIA  463 

that  his  West  Virginia  friends  appreciated  his  difficul- 
ties and  would  stand  by  him;  commending  Lincoln  in 
whom  the  Alexandria  governor  seems  to  have  lost  con- 
fidence; and,  when  Grant  was  advancing  on  Richmond, 
hailing  the  capture  of  that  city  as  an  event  that  would 
give  Pierpoint  "something  to  do,  which  is  better  than 
being  comparatively  idle."  ^^ 

That  this  Alexandria  government  was  but  the  logical 
continuation  of  the  ''restored  government  of  Virginia" 
at  Wheeling  hardly  admits  of  doubt;  and  yet  there  was 
a  marked  change  in  the  attitude  of  the  Federal  Congress 
toward  the  Virginia  Unionists  after  the  removal  from 
Wheeling  to  Alexandria.  Though  "Virginia"  was  rep- 
resented in  the  Thirty-seventh  Congress  (from  1861  to 
1863),  the  State  was  not  represented  at  all  in  the  lower 
house  of  the  Thirty-eighth  Congress  (1863-1865);  and 
in  the  two  succeeding  Congresses  the  State  was  not  rep- 
resented in  either  house.  It  was  not  until  1869  that 
the  long  and  painful  process  of  reconstruction  in  Vir- 
ginia had  proceeded  to  the  point  where  representation 
in  Congress  was  again  permitted;  and  then  the  restora- 
tion was  accomplished  by  a  method  quite  independent 
of  the  "restored  State"  movement. 

The  efforts  of  the  Unionists  of  Virginia  to  obtain  rep- 
resentation in  Congress  during  the  war  present  a  curi- 
ous study.  Since  the  Confederate  occupation  of  the 
major  part  of  the  State  prevented  Unionists  from  vot- 
ing in  their  own  counties,  the  Wheeling  convention,  in 
August,  1861,  authorized  "loyal  citizens"  to  vote  for 
members  of  Congress  anywhere  within  their  congres- 
sional districts;  ^^  and  a  section  of  the  old  Virginia  code 
was  found  by  which,  in  the  absence  of  regular  commis- 


'  Pierpoint  Papers,  passim. 

'  West  Virginia  Legislative  Handbook,  1916,  p.  280. 


464  THE  CONSTITUTION  UNDER  LINCOLN 

sioners  of  election  (who  were  required  by  law  to  be 
appointed  by  the  county  court),  any  two  freeholders 
might  conduct  an  election.^*  In  accordance  with  these 
provisions,  there  were  various  so-called  congressional 
elections  in  Virginia  during  the  war,  in  which  a  few 
precincts  out  of  whole  congressional  districts  would 
participate,  and  Congress  w^ould  then  be  asked  to  seat 
the  successful  candidates  on  the  ground  that  loyal 
minorities  should  not  be  denied  representation  because 
of  the  rebellious  attitude  of  majorities.  Of  those  who 
obtained  seats  from  Virginia  in  the  Thirty-seventh  Con- 
gress, only  two — Joseph  E.  Segar  and  Lewis  McKenzie 
— represented  constituencies  in  the  eastern  part  of  the 
State.  Three  members — Brown,  Blair,  and  Whaley — 
represented  that  part  w^hich  became  West  Virginia. 
Segar's  claim  to  represent  the  "eastern  shore"  and  the 
vicinity  of  Norfolk  was  long  contested,  and  he  was 
once  rejected;  but,  after  another  election  had  been  held 
which  was  more  to  the  liking  of  his  Washington  col- 
leagues, he  was  seated. ^^ 

For   the   Alexandria   district   there   were   contesting 
claims  by  Upton  and  Beach;  ^^  and,  after  both  of  these 


^Virginia  Code  of  1860,  Ch.  vii,  par.  11. 

""Segar's  first  claim  was  based  upon  twenty-five  votes  at  Hampton, 
Elizabeth  City  County,  on  October  24,  1861.  There  was  no  poll  else- 
where in  the  district.  After  the  rejection  of  this  claim  another  election 
was  held  (in  three  of  the  seventeen  counties  composing  the  district) 
in  which  he  received  559  of  the  1018  votes  cast.  On  this  election  he  was 
seated  on  May  6,  1862.  {House  Misc.  Docs.,  Nos.  5  and  29,  37  Cong., 
2  sess.;  Biographical  Congressional  Directory  [Sen.  Doc.  No.  66,  61 
Cong.,  2  sess.],  p.  224.) 

'"The  Richmond  secession  convention  prohibited  the  election  of  mem- 
bers of  the  United  States  Congress.  Owing  to  this  action  and  also 
because  of  threats  of  violence,  polls  were  not  opened  at  the  regular 
date,  May  23,  1861.  In  a  few  precincts,  however,  voters  sent  in  ir- 
regular returns  in  favor  of  Upton.  Beach  claimed  to  have  been  chosen 
at  a  special  election  held  in  October,  1861,  on  the  authority  of  an 
ordinance  passed  by  the  Wheeling  convention;  but  this  election  was 


THE  PARTITION  OF  VIRGINIA  465 

had  been  rejected,  McKenzie  was  finally  seated  when 
but  a  few  days  of  the  session  remained.  Since  the  votes 
for  Segar  and  McKenzie  were  but  fragmentary,  it  ap- 
pears that  Congress  was  at  this  time  recognizing  the 
right  of  loyal  minorities  in  the  State  to  representation. 

But  this  principle  was  not  recognized  in  the  Thirty- 
eighth  Congress.  Though  there  were  various  claimants 
for  seats  from  Virginia  in  that  Congress,  the  House  of 
Representatives  rejected  them  all  and  left  the  State 
without  representation.  Segar  protested  against  this 
as  a  great  injustice.  He  reminded  the  House  that  in 
1862  he  had  been  seated  when  he  had  received  only 
559  votes  out  of  a  total  of  1018,  and  could  not  under- 
stand why  he  should  be  rejected  in  1864  when  he  re- 
ceived 1300  out  of  1667  votes.  The  House,  he  declared, 
did  not  customarily  inquire  whether  or  why  certain 
voters  were  absent  from  the  polls,  but  based  their  de- 
cisions upon  a  majority  of  the  votes  actually  cast,  dis- 
regarding absentees.  The  four  counties  which  had 
voted  for  him  were  paying  Federal  taxes  and  he  claimed 
that  they  were  entitled  to  Federal  representation.  Vir- 
ginia, he  insisted,  was  a  State,  and  the  Alexandria  gov- 
ernment was  a  real  government.  Its  weakness,  he 
pleaded,  should  be  its  protection;  and  it  should  be  pre- 
served as  a  Union  nucleus  with  a  view  to  restoring  the 
whole  State  around  it  as  a  center.^^  Another  speaker. 
Chandler,  pointed  out  that  Virginia  had  furnished  25,000 
Union  troops  and  was  entitled  to  Union  recognition.^^ 

The  House,  however,  proceeded  on  the  principle  that 
Representatives  should  not  be  seated  from  a  fragment 

valid  only  on  the  theory  that  there  had  been  no  election  in  May. 
The  House  solved  the  puzzle  by  rejecting  both  claims.  (House  Misc. 
Doc.  No.  26,  37  Cong.,  2  sess.;  Sen.  Doc.  No.  66,  61  Cong.,  2  sess., 
p.  224.) 

"  Cong.  Globe,  May  17,  1864,  38  Cong.,  1  sess.,  pp.  2313  et  seq. 

''Ibid.,  p.  2321. 


466  THE  CONSTITUTION  UNDER  LINCOLN 

of  a  district  when  a  free  election  in  the  whole  district 
had  been  prevented  by  reason  of  "rebel"  control.^^  It 
was  on  this  basis  that  Virginia  was  denied  representa- 
tion in  Congress  after  1863.  If  such  a  rule  had  been 
acted  upon  during  the  two  preceding  years,  no  repre- 
sentatives would  have  been  seated  from  the  eastern  part 
of  the  State.  Moreover,  this  principle  of  free  election, 
if  recognized  in  the  first  two  years  of  the  war,  would 
have  defeated  the  whole  process  by  which  West  Vir- 
ginia was  created. 

The  later  attitude  of  Congress,  by  which  representa- 
tion was  denied  to  the  State  over  which  Pierpoint 
claimed  to  rule,  accentuated  the  irregularity  of  the 
whole  West  Virginia  movement.  The  "restored  gov- 
ernment" was  recognized  by  Congress  as  competent  to 
act  for  all  of  Virginia  in  the  matter  of  consenting  to 
the  division  of  the  State;  but  when  this  division  had 
been  accomplished,  and  despite  the  advance  of  Union 
arms,  none  of  the  territory  over  which  this  same  govern- 
ment claimed  authority  was  considered  to  be  sufficiently 
reclaimed  to  be  entitled  to  representation  in  Congress. 
The  further  rejection  of  this  "restored  State"  as  the 
instrument  for  brmging  Virginia  back  into  the  Union 
after  the  war  suggests  that  its  chief  function  was  to 
provide  a  nominal  compliance  with  that  requirement  of 
the  Federal  Constitution  that  no  State  shall  be  disrupted 
without  its  consent. ^'^ 

After  this  rude  handling  by  the  Washington  Con- 
gress, the  experiment  of  trying  to  maintain  a  fictitious 

"Ibid.,  pp.  2311,  2323. 

'"On  April  4,  1867,  Pierpoint  was  removed  by  Federal  authority  and 
H.  H.  Wells  was  made  military  governor.  The  reconstruction  of  the 
State  is  well  described  in  H.  J.  Eckenrode,  Political  History  of  Vir- 
ginia during  the  Reconstruction.  Eckenrode  commends  Pierpoint's  con- 
ciliatory policy  after  the  war,  but  shows  that  this  policy  was  over- 
thrown by  the  radical  Republicans  who  seized  control. 


THE  PARTITION  OF  VIRGINIA  46? 

government  for  Virginia  encountered  further  obstacles 
at  Norfolk  where  it  met  the  formidable  and  contentious 
opposition  of  General  B.  F.  Butler.  Assuming  control 
of  the  United  States  forces  at  Norfolk  in  November, 
1863,  Butler  found  himself  in  occupation  of  a  region 
over  which  jurisdiction  was  claimed  by  the  government 
at  Alexandria  under  Pierpoint.  The  general  denounced 
this  government  as  useless,  spurious  and  even  disloyal, 
and  took  measures  to  withdraw  the  city  of  Norfolk  from 
its  control.  At  the  time  of  the  election  of  municipal 
officers  he  used  his  military  authority  to  cause  the  people 
to  vote  whether  or  not  they  wished  the  city  government 
to  be  maintained.  With  ''singular  unanimity,"  he  said, 
"the  qualified  voters  of  Norfolk  .  .  .  decided  against 
the  further  existence  of  civil  government."  ^^ 

Butler  then  ordered  the  suspension  of  civil  govern- 
ment in  Norfolk,*'-  and  the  city  was  subjected  to  mili- 
tary rule,  with  Butler  in  supreme  charge.  The  city 
judge,  Edward  K.  Snead,  was  brought  before  Butler 
and  a  serio-comic  examination  was  conducted  in  which 
Butler  took  occasion  to  argue  elaborately  against  the 
validity  of  the  "restored  government"  of  Virginia,  say- 
ing that  if  there  were  forty  governors  of  Virginia,  "they 
must  not  set  themselves  up  against  my  authority  in 
Norfolk,"  while  Snead  called  attention  to  the  fact  that 
the  President  could  revoke  any  illegal  military  orders 
of  Butler.    The  examination  concluded  as  follows: 

Butler:     I  have  determined  that  you  cannot  disobey  my 
military  orders.    Do  you  propose  to  do  so? 
Snead:    Yes,  Sir.^^ 


"The  vote  as  reported  by  Butler  was  330  to  16:     Private  and  Offi- 
cial Correspondence  oj  B.  F.  Butler,  IV,  580. 
''Ibid.,  p.  589. 
"'Ibid.,  p.  574. 


468  THE  CONSTITUTION  UNDER  LINCOLN 

Butler  then  issued  an  order  imprisoning  Judge  Snead, 
and  justice  within  the  city  was  thencefonvard  adminis- 
tered by  Butler's  military  courts.  Police  matters  were 
placed  under  the  provost  marshal;  the  superintendent  of 
prison  labor  took  charge  of  the  streets;  schools  (both 
white  and  colored)  were  placed  under  a  military  com- 
mission; taxes  and  appropriations  were  controlled  by  the 
military  commandant;  and  such  matters  as  fire  protec- 
tion, street  lighting  and  harbor  control  were  put  under 
military  administration.^^  In  brief,  as  Butler  said,  the 
city  was  under  martial  law,  and  civil  affairs  were  sub- 
jected to  military  control. 

Attorney  General  Bates  entered  the  lists  as  a  cham- 
pion of  the  civil  government  of  Virginia,  and  in  a  let- 
ter to  the  President  he  denounced  Butler's  "arbitrary 
orders."  He  deplored  the  dangerous  anomaly  of  a  mili- 
tary ojBScer  ordering  an  election  by  the  people  on  any 
subject;  denounced  the  absurdity  of  appealing  to  popular 
vote  on  the  question  whether  the  laws  should  prevail  or 
martial  law  be  established;  sharply  censured  an  election 
in  which  the  military  authorities  fixed  the  qualification 
of  voters,  counted  the  ballots,  and  declared  the  vote; 
and  finally  called  upon  the  President  to  revoke  these 
military  orders.^^  Lincoln  then  interfered  to  prevent  a 
proposed  election  which  Butler  was  planning  to  conduct 
on  the  eastern  shore,  and  shortly  after  this  Butler  was 
removed  from  his  Virginia  command. ^^  In  this  Picr- 
point-Butler  controversy  and  on  other  occasions  Lincoln 


"  Ibid.,  p.  589. 

"Bates  to  President  Lincoln,  July  11,  1864:  Attorney  General's  let- 
ter books.  This  letter  is  also  found  in  the  Bates  manuscripts  at  the 
Jefferson  Memorial  Library,  St.  Louis. 

"The  Picrpoint  Papers  include  considerable  material  concerning  the 
controversy  between  Picrpoint  and  Butler.  The  subject  is  briefly 
treated  in  Nicolay  and  Hay,  Lincoln,  IX,  Ch.  xix. 


THE  PARTITION  OF  VIRGINIA  469 

showed  some  intention  of  recognizing  the  legitimacy  of 
the  "restored  government."  In  April,  1865,  however, 
he  proposed  that  the  Richmond  legislature  be  recognized 
as  the  agency  for  restoring  Virginia  to  the  Union.®"^ 


VIII 

After  the  war  Virginia  acquiesced  in  the  separation, 
and  the  decisions  of  her  own  judiciary  conceded  the 
legality  both  of  the  new  State  and  of  the  "restored  gov- 
ernment" of  Virginia.  The  United  States  Supreme 
Court  never  found  it  necessary,  therefore,  to  deal  with 
any  direct  challenge  of  the  constitutionality  of  the  process 
of  separation.  In  connection  with  a  boundary  contro- 
versy, however,  certain  significant  legal  matters  were 
presented  to  that  court.  Virginia  laid  claim  to  Jefferson 
and  Berkeley  counties  on  the  ground  that  a  vote  of  the 
people  (required  as  to  these  counties  by  the  new  State's 
constitution  and  the  "restored  government's"  act  of  con- 
sent) had  not  in  a  sufficient  sense  been  taken,  and  also 
because  the  restored  State  had  withdrawn  its  consent  as 
to  these  counties  before  the  transaction  was  consum- 
mated.^^ The  Supreme  Court  declared  the  certificate  of 
the  Governor  of  Virginia,  reporting  a  vote  of  the  coun- 
ties in  favor  of  the  transfer,  to  be  conclusive  upon  the 
court;  and  on  this  ground  the  claim  of  West  Virginia  to 
the  disputed  counties  was  sustained. ^^ 

In  the  absence  of  any  decision  on  the  main  question 
of  the  creation  of  the  new  State,  this  controversy  over 
the  boundary  may  be  studied  not  so  much  for  what  was 
decided  as  for  what  was  assumed  to  be  already  settled. 

"  H.  G.  Connor,  John  Archibald  Campbell,  177-178. 
"The  question  of  the  disputed  counties  is  treated  in  Eckenrode,  op. 
cit.,  pp.  15-17. 
••Va.  vs.  W.  Va.,  78  U.  S.  39  (December,  1870). 


470  THE  CONSTITUTION  UNDER  LINCOLN 

Virginia  brought  the  suit,  referring  in  her  complaint  to 
the  boundary  controversy  "between  this  Commonwealth 
and  the  State  of  West  Virginia,"  In  her  bill  of  com- 
plaint and  the  argument  of  her  counsel  no  reference  was 
made  to  the  illegality  of  the  process  by  which  the  new 
State  was  formed  and  various  statutes  of  the  "restored 
government"  were  cited  in  such  terms  as  to  admit  the 
competency  of  that  government  to  act  for  Virginia  in 
regard  to  the  division  of  the  State.  The  counsel  for  the 
old  State  referred  to  the  Alexandria  government  as  the 
"Commonwealth  of  Virginia,"  and  their  contention  w^as 
not  that  this  "restored  government"  lacked  authority  to 
act  for  Virginia,  but  that  as  to  the  disputed  counties  the 
acts  of  that  government  were  mere  proposals  which 
never  became  operative. 

Turning  to  the  opinion  of  the  Supreme  Court  we  find 
that  the  validity  of  West  Virginia's  legal  existence  was 
assumed  without  question.  The  case  was  considered  to 
be  within  the  court's  jurisdiction  as  a  boundary  contro- 
versy between  two  States;  the  acts  of  "Virginia"  con- 
senting to  the  division  were  cited  as  competent ;  and  the 
court  affirmed  the  existence  of  "a  valid  agreement  be- 
tween the  two  States  consented  to  by  Congress,  w'hich 
agreement  made  the  accession  of  these  counties  depend- 
ent upon  the  result  of  a  popular  vote  in  favor  of  that 
proposition."  This  valid  agreement,  which  the  court 
cited  because  of  its  bearing  upon  the  transfer  of  the  two 
disputed  counties,  had  as  its  main  significance  the  con- 
sent of  the  old  State  to  the  formation  of  the  new  one. 
As  a  part  of  its  reasoning  concerning  the  validity  of  this 
contract  between  the  States,  the  court  pointed  out  that 
Congress  had  approved  the  contract,  citing  for  this  pur- 
pose the  act  admitting  West  Virginia.  In  sum,  this  case, 
with  its  decision  in  favor  of  West  Virginia,  amounts  to 
an  admission  by  the  old  State  and  an  affirmation  by  the 


THE  PARTITION  OF  VIRGINIA  471 

Supreme  Court  that  the  proceedings  concerning  the  par- 
tition of  Virginia  were  valid.  The  whole  controversy  as 
to  which  one  of  the  States  possessed  the  two  counties 
would  obviously  have  been  without  significance  if  this 
validity  had  not  been  conceded. 


IX 

It  is  not  the  writer's  purpose  to  attempt  to  state  the 
"verdict  of  history"  (if  such  a  thing  exists)  as  to  the 
process  of  dividing  Virginia.  A  new  State  was  brought 
into  the  Union  with  full  rights,  and  when  once  this  was 
done  it  was  too  late  to  reconsider  the  legality  of  the 
process  by  which  the  new  commonwealth  was  created. 
Not  every  historic  wrong  is  capable  of  being  righted  by 
subsequent  measures;  and  any  undoing  of  the  process  of 
partition  after  the  war  was  out  of  the  question.  The 
only  thing  to  do  then  was  to  accept  the  separation  as  an 
accomplished  fact,  and  Virginia  loyally  adjusted  herself 
to  this  changed  situation. 

Some  questioning,  however,  may  be  allowed  to  the 
student  of  American  constitutional  history,  who  can 
hardly  fail  to  be  impressed  by  the  orderliness  and  the 
aptitude  for  governmental  processes  which  have  charac- 
terized the  American  people.  It  is  a  legal-minded  peo- 
ple which  has  given  to  the  world  the  constitutional  con- 
vention and  has  taken  great  care  in  new  emergencies  to 
proceed  correctly  and  in  harmony  with  sound  principles 
in  ordering  its  political  life.  It  has  the  oldest  govern- 
ment in  the  world  based  upon  a  written  constitution  and 
its  respect  for  this  fundamental  instrument  has  been  pro- 
found and  lasting.  Did  the  methods  used  in  bringing 
West  Virginia  into  being  measure  up  to  the  standards 
that  the  American  people  have  raised  and  in  general 
adhered  to? 


472  THE  CONSTITUTION  UNDER  LINCOLN 

When  West  Virginia  writers  deal  with  this  question, 
they  usually  shift  the  emphasis  to  the  need  for  a  gov- 
ernment to  which  Unionists  in  Virginia — chiefly  in  the 
western  part — could  look  for  protection.  In  organized 
society,  it  was  argued,  the  citizen's  duty  of  allegiance 
and  the  government's  obligation  to  afford  protection  are 
reciprocal.  Only  rightful  governments  which  truly  pro- 
tect the  citizen  are  entitled  to  allegiance,  and  only  loyal 
citizens  are  entitled  to  governmental  protection.  WTien 
State  oflScers,  as  Governor  Pierpoint  expressed  it,  for- 
swear their  allegiance  to  the  Federal  Constitution,  "turn 
traitors"  and  seek  to  subject  the  people  to  a  foreign 
government,  their  ofl&ces  become  vacant.  Bereft  of  gov- 
ernmental protection  by  a  convulsion  in  the  body  politic, 
the  Unionists  of  Virginia  in  1861,  said  he,  proceeded  "in 
the  mode  common  in  a  republican  government  in  organ- 
izing a  State  by  a  convention  representing  the  loyal 
people  of  the  State,  to  appoint  the  necessary  agencies 
for  carrying  on  the  government  under  the  existing  Con- 
stitution and  laws  of  the  State  for  the  protection  of  the 
people."  '^°  Though  the  "restored  government"  so  created 
represented  less  than  a  majority  of  the  people  of  the 
State,  yet,  according  to  the  governor's  argument,  it 
was  the  only  rightful  government;  since  rebels  have  no 
rights  under  a  government  against  which  they  rebel,  and 
a  majority  by  turning  rebels  cannot  deprive  the  loyal  of 
their  rights.  Though  there  are  occasions,  said  Pierpoint, 
when  the  people  have  a  "right  to  rebel,"  yet  this  is  like 
the  right  of  justifiable  homicide  in  self-defense,  and  is  to 
be  exercised  only  when  every  other  method  of  redress 
fails.  But  there  was  in  fact,  said  he,  no  such  situation 
justifying  secession  in  1861. 


"Message  of  Governor  Pierpoint,  Dec.  7,  1863:     Journal  oj  House 
of  Delegates  oj  Virginia  (sess.  of  1863-64,  Alexandria),  p.  12. 


THE  PARTITION  OF  VIRGINIA  473 

This  argument,  it  will  be  noted,  touches  only  upon 
the  need  for  a  Unionist  State  government  in  Virginia 
and  does  not  answer  the  question  as  to  the  necessity  for 
a  new  State.  These  are  distinct  questions.  If  the  need 
for  a  State  government  to  protect  the  west  in  its  loyalty 
to  the  Union  were  the  chief  consideration,  then  why 
could  not  the  "restored  government"  which  governed  the 
western  counties  from  1861  to  1863  have  been  continued 
throughout  the  war,  increasing  its  domain  of  jurisdiction 
as  the  armies  advanced  and  constituting  a  nucleus 
around  which  Virginia  might  have  been  brought  back 
whole  into  the  Union?  If,  then,  the  demand  for  a  new 
State  was  normal  and  permanent  (and  not  simply  a 
matter  connected  with  the  issues  of  the  war),  the  sepa- 
rate commonwealth  could  have  been  founded  after  the 
war  in  a  peaceable,  deliberate  manner  without  undue 
Federal  intervention  and  with  every  opportunity  for 
Virginia  as  a  whole  to  act,  both  upon  the  main  question 
whether  a  new  State  should  be  created  and  also  upon 
subsidiary  questions  (such  as  the  apportionment  of  the 
debt,  and  the  fixing  of  the  boundary)  in  which  impor- 
tant interests  of  the  old  commonwealth  were  involved. 

The  irregular  method  by  which  the  new  State  was 
formed,  and  the  adoption  of  a  mere  fiction  as  a  basis  for 
claiming  fulfillment  of  a  constitutional  provision,  had 
various  unfortunate  effects.  It  substituted  a  kind  of 
sophistry  to  excuse  the  non-fulfillment  of  a  solemn  legal 
obligation,  and  it  presented  an  example  of  a  measure 
which  even  its  supporters  did  not  wish  to  be  emulated 
elsewhere  or  used  as  a  precedent.  Those  who  argued  for 
the  new  State  were  careful  to  insist  that  the  case  of 
western  Virginia  was  sui  generis,  and  that  no  other  in- 
stance would  arise  in  which  a  similar  proceeding  would 
be  undertaken.  But  if  the  method  of  forming  this  new 
State  were  correct  and  justifiable,  why  should  it  not  have 


474  THE  CONSTITUTION  UNDER  LINCOLN 

been  extended?  If  the  people  of  eastern  Tennessee,  for 
instance,  had  started  a  new  State  movement,  it  is  hard  to 
see  how  their  right  to  use  the  same  methods  could,  under 
the  circumstances,  have  been  denied. 

Those  who  base  the  justification  for  the  new  State 
upon  the  Unionists'  need  for  a  State  government  should 
explain  why  the  Federal  cause  required  two  governments, 
one  at  Wheeling  and  the  other  at  Alexandria.  The 
Unionist  government  for  Virginia  as  a  whole — i.e.,  the 
Pierpoint  government — was  greatly  weakened  by  the  new 
State  movement,  and  to  this  extent  it  might  be  said  that 
the  cause  of  loyalty  to  the  Federal  L^nion  was  injured; 
for  the  government  which,  until  June  of  1863,  wielded 
real  power  in  Wheeling,  was  left  stranded  and  subjected 
to  derision  as  a  "straw  government"  in  Alexandria. 

Nor  is  the  case  adequately  covered  by  presenting  griev- 
ances and  sectional  considerations  showing  the  wisdom 
of  dividing  the  commonwealth;  for  the  question  is  not 
merely  the  need  for  a  new  State,  but  the  justification  of 
the  irregular  process  by  which  the  new  State  was  formed. 
The  difference  between  an  irregular  and  a  normal  process 
of  dividing  a  State  is  shown  by  comparing  the  case  of 
West  Virginia  with  that  of  Maine.  The  Massachusetts 
legislature  carefully  guarded  the  process  by  which  the 
district  of  Maine  was  to  be  erected  into  a  new  State,  pro- 
viding that  there  must  be  a  majority  of  at  least  1500  in 
favor  of  separation  on  the  part  of  the  people  of  the  dis- 
trict, and  specifying  how  delegates  should  be  elected  to 
a  constitutional  convention,  how  application  should  be 
made  to  obtain  the  consent  of  Congress  for  the  creation 
of  the  new  State,  how  the  constitution  was  to  be  voted 
upon  in  the  towns,  and  how  it  was  to  take  effect  if 
adopted  by  a  majority  of  the  voters,  while  otherwise  the 
constitution  of  Massachusetts  should  remain  in  force, 
"that  no  period  of  anarchy  may  happen  to  the  people 


THE  PARTITION  OF  VIRGINIA  475 

of  the  said  proposed  State."  The  transfer  of  cases  to  the 
courts  of  the  new  State  was  provided  for;  and  various 
important  conditions  were  stipulated  as  a  part  of  the 
old  State's  act  of  consent,  such  as  the  retention  by 
Massachusetts  of  half  the  unappropriated  lands  within 
the  new  State  and  the  making  of  needful  arrangements 
concerning  Bowdoin  College  and  the  Indians.  These 
terms  were  to  be  incorporated  into  the  new  State's  con- 
stitution and  were  to  be  subject  to  modification  or  an- 
nulment by  agreement  of  the  legislatures  of  both  States, 
but  by  no  other  power  or  body  whatsoever.''^ 

In  contrast  to  this  careful  safeguarding  of  the  inter- 
ests of  Massachusetts,  Virginia  had  no  way  of  protecting 
her  interests  as  to  details,  no  opportunity  to  stipulate 
appropriate  conditions  as  to  the  separation.  In  at  least 
two  respects — as  to  the  boundary  and  as  to  the  State 
debt — Virginia  suffered  because  of  this  failure  to  estab- 
lish adequate  guarantees  at  the  time  of  separation.  As 
to  the  boundary,  it  was  the  west  alone  which  determined 
which  counties  should  go  into  the  new  State,  and  in  the 
case  of  Jefferson  and  Berkeley  counties  (which  were  not 
included  in  the  new  State  at  the  time  President  Lincoln 
proclaimed  its  existence  in  April,  1863),  it  was  claimed 
that  no  considerable  part  of  the  polls  had  been  opened 
and  no  adequate  vote  ever  held  on  the  question  of  join- 
ing West  Virginia.  Had  the  process  of  separation  been 
normal  and  the  method  of  voting  in  each  locality  care- 
fully prescribed  by  a  legislature  truly  representative  of 
Virginia,  this  difficulty  could  have  been  avoided. 

On  the  question  of  the  debt,  Virginia  suffered  severely; 
for  the  new  State  neglected  for  more  than  fifty  years  to 
assume  its  equitable  portion,  forcing  the  old  State  to 
resort  to  a  long  and  painful  litigation  before  the  United 

"  Act  of  June  19,  1819 :     Gen.  Laws  oj  Mass.,  1819,  Ch.  cbd. 


476  THE  CONSTITUTION  UNDER  LINCOLN 

States  Supreme  Court  in  order  to  overcome  an  obstruc- 
tive attitude  on  the  part  of  the  younger  commonwealth 
which  at  times  verged  upon  defiance.'^^  It  seems  clear 
that  if  Virginia  had  in  reality  been  consulted  on  the 
matter  of  separation,  a  better  solution  could  have  been 
found  for  the  apportionment  of  this  financial  burden. 

"  Elsewhere  the  writer  has  discussed  the  complicated  question  of  the 
Virginia  debt.  {Pol.  Sci.  Quar.,  Dec,  1915,  XXX,  553-577.)  West 
Virginia's  portion  of  the  debt  as  fixed  by  a  decree  of  the  United  States 
Supreme  Court  was  finally  paid  and  a  satisfaction  of  judgment  was 
filed  on  March  1,  1920.  For  recent  decisions  on  the  debt  question  the 
following  citations  may  be  noted:  209  U.  S.  514;  220  U.  S.  1 ;  222 
U.  S.  17;  231  U.  S.  59;  234  U.  S.  117;  238  U.  S.  202;  241  U.  S.  531; 
246  U.  S.  565. 


CHAPTER  XIX 

THE   RELATION   OF   THE   GOVERNMENT   TO   THE   PRESS 

I.   Freedom  of  the  press  in  American  law 
II.   Lack  of  censorship  during  the  Civil  War:    Military 
control  of  telegraphic  communication 

III.  Activities  of  newspapers  during  the  war:    Continual 

revelation  of  military  information 

IV.  Military  measures  available  against  correspondents 

and  editors 
V.   The  "suppression"  of  newspapers 
VI.   Exclusion  from  the  mails  and  other  civil  measures  of 

control 
VII.   The  arrest  of  editors 

VIII.   General  comment  on  problems  of  press  control  during 
the  war 


One  of  the  difficult  problems  of  goverament  under 
President  Lincoln  was  that  of  dealing  with  a  disloyal 
and  remarkably  active  press  during  the  progress  of  a 
desperate  war.  The  Government  was  tempted  almost 
beyond  endurance  to  the  adoption  of  drastic  measures 
of  repression,  but  was  all  the  time  confronted  with  the 
peculiar  safeguards  which  in  our  democratic  Constitution 
surround  the  expression  of  popular  sentiment.^ 

*The  author  has  found  but  little  interference  with  freedom  of  speech 
(as  distinguished  from  freedom  of  the  press)  during  the  Civil  War. 
As  there  were  no  judicial  prosecutions  because  of  oral  utterances 
against  the  Government,  the  main  features  of  this  subject  are  in- 
cluded within  the  discussion  of  arbitrary  arrests  and  the  trial  of  civilians 
by  military  commissions.  For  these  subjects,  see  Chapters  VII  and 
VIII.    The  Vallandigham  case  is  the  one  conspicuous  instance  of  inter- 

477 


478  THE  CONSTITUTION  UNDER  LINCOLN 

The  whole  tenor  of  American  law,  it  must  be  remem- 
bered, is  opposed  to  the  forcing  or  suppression  of  opin- 
ion. An  untrammeled  forum  for  public  expression  is 
one  of  the  cardinal  ideals  of  American  political  liberty, 
and  by  the  First  Amendment  of  our  Constitution  Con- 
gress is  prohibited  from  making  any  law  "abridging  the 
freedom  of  speech  or  of  the  press."  The  controversy 
over  the  Sedition  Act  of  1798  illustrated  in  a  striking 
manner  the  vitality  of  the  principle  embodied  in  this 
amendment.  Enacted  during  the  regime  of  reactionary 
Federalism  which  prevailed  during  the  presidency  of 
John  Adams,  the  law  was  so  framed  as  to  offer  a  weapon 
against  the  administration's  pohtical  opponents.  It  de- 
clared the  penalty  of  fine  and  imprisonment  against  any 
person  who  should  "write,  print,  utter,  or  pubhsh  .  .  . 
any  false,  scandalous  and  malicious  writing  .  .  .  against 
the  government  of  the  United  States,  or  either  house  of 
the  Congress  ...  or  the  President  .  .  .  with  intent  to 
defame  [them]  or  to  bring  them  .  .  .  into  contempt  or 
disrepute."  Writings  calculated  to  excite  hatred  against 
the  President  or  Congress,  or  to  stir  up  sedition  or  unlaw- 
ful combinations,  were  placed  under  a  like  prohibition. ^ 

This  law,  it  may  be  noted,  was  by  no  means  as  arbi- 
trary as  those  measures  of  repression  by  which  the  press 
and  the  public  forum  have  been  throttled  in  European 
monarchies.    For,  in  the  first  place,  the  act  was  a  law  of 


ference  with  freedom  of  speech  during  the  war,  and  the  arrest  of  this 
agitator  was  made  without  express  authority  from  the  President  who 
commuted  the  sentence  of  the  miUtary  commission  from  imprisonment 
to  banishment.  When  VaUandigham  returned  to  the  United  States  via 
Canada,  the  Confederate  authorities  having  sped  his  departure  from 
their  midst,  he  was  allowed  to  go  unmolested,  though  delivering  violent 
speeches.  The  mere  exjiression  of  disloyal  sentiments  was  not  ordi- 
narily regarded  as  grounds  for  military  arrest.  For  the  VaUandigham 
case,  see  supra,  pp.  176-179. 
*U.  S.  Stat,  at  Large,  I,  596. 


THE  GOVERNMENT  AND  THE  PRESS    479 

Congress,  not  an  imperial  ukase  or  edict ;  it  was  enforce- 
able through  the  regular  courts  with  all  of  the  safeguards 
which  that  implies;  falsity  and  malice  were  made  essen- 
tial attributes  in  the  crime,^  so  that  there  could  be  no 
conviction  for  the  printing  of  a  true  statement  (or  even 
of  a  false  one  with  innocent  motives) ;  and  finally,  the 
protection  of  jury  trial  was  afforded  to  the  accused.  The 
offensive  features  of  this  law  were  not  those  which  per- 
tained to  the  method  of  conviction  and  punishment,  but 
rather  to  the  description  of  the  crime.  The  law  was 
repugnant  primarily  because  it  made  criminal  the  utter- 
ing of  certain  writings  directed  against  the  Government. 
One  of  the  prominent  cases  under  this  act  was  that  of 
Matthew  Lyon,  a  Vermont  editor  who  was  found  guilty* 
of  seditious  writing  and  of  having  published  a  libel 
against  John  Adams.  He  was  sentenced  in  October,  1798, 
to  an  imprisonment  of  four  months,  and  a  fine  of  one 
thousand  dollars  and  costs.^  In  general,  however,  there 
was  but  slight  enforcement  of  the  law.  The  significant 
day,  March  3,  1801,  which  historians  regard  as  the  end  of 
the  Federalist  regime,  was  named  in  the  act  itself  as  the 
date  of  its  termination;  and  it  was  therefore  unnecessary 
for  the  Jeffersonian  party,  coming  into  power  on  the  fol- 
lowing day,  to  repeal  the  statute.  Though  the  constitu- 
tionality of  this  law  was  never  tested  before  the  Supreme 
Court,  yet  there  has  always  been  a  certain  discredit 
attaching  to  a  measure  which  contributed  so  largely  to 

*The  wording  was  "false,  scandalous  and  [not  or'i  malicious." 
*U.  S.  Circuit  Court,  Vermont,  Oct.  9,  1798:  Wharton,  State  Trials, 
333;  15  Fed.  Cas.  1183.  Another  victim  of  the  Sedition  Act  was 
Thomas  Cooper,  who  was  imprisoned  for  a  time  at  Philadelphia  and 
who  later  made  some  amusing  efforts  to  obtain  a  prosecution  of 
Hamilton,  stanch  Federalist  that  he  was,  for  alleged  violation  of 
the  act  in  connection  with  a  letter  in  which  Hamilton  attacked  the 
President.  For  an  interesting  discussion  of  this  subject,  with  annota- 
tions suppljdng  information  on  the  enforcement  of  the  Sedition  Act, 
see  the  article  by  Dumas  Malone  in  the  Am.  Hist.  Rev.,  XXIX,  76-81. 


480  THE  CONSTITUTION  UNDER  LINCOLN 

the  downfall  of  the  administration  and  the  party  which 
enacted  it.  The  later  viewpoint  with  regard  to  the  act 
is  shown  in  the  report  of  the  Judiciary  Committee  of  the 
House  of  Representatives  in  1832  which  denounced  the 
law  as  unconstitutional  ^  (in  which  opinion  most  consti- 
tutional lawyers  would  now  concur)  and  recommended 
relief  to  the  Lyon  heirs.  The  relief  was  granted  in  1840 
when  Congress  refunded  the  fine,  thus  registering  its 
disapproval  of  such  legislation.^ 

When  the  Civil  War  opened  there  were  no  laws  on  our 
statute-books  which  were  at  the  same  time  laws  against 
the  press  and  laws  to  punish  crimes  against  the  Govern- 
ment; nor  were  any  such  laws  passed  at  any  time  during 
the  war,  in  spite  of  far  greater  provocation  than  that 
which  confronted  the  administration  of  President  Adams. 
There  was  the  law  against  conspiracy,  the  Treason  Act 
of  1862,  and  the  law  which  severely  punished  any  one 
who  resisted  the  draft  or  counseled  resistance;  but  these 
measures  were  not,  in  fact,  effective  for  the  punishment 
of  journalistic  disloyalty. 

Editors  and  proprietors  of  papers  were,  indeed,  legally 
responsible  for  what  their  sheets  contained,  but  this 
responsibility  was  by  no  means  peculiar  to  editors  and 
pubhshers  of  newspapers,  being  derived  merely  from  the 
general  law  of  libel,  which  applies  alike  to  all.  But  the 
laws  applying  to  libel  take  into  view  only  personal  in- 
jury, as  for  instance  by  the  defamation  of  character,  and 
do  not  recognize  the  injury  to  the  public  interest  which 
is  involved  in  the  defamation  or  undermining  of  a  gov- 


'The  problem  of  the  constitutionality  of  a  Federal  sedition  act,  in 
its  bearing  on  the  reserved-power  principle,  the  treason  clauses,  and 
the  First  Amendment,  is  discussed  in  Chafee,  Freedom  oj  Speech, 
199-207. 

'House  Rep.  No.  218,  22  Cong.,  1  eess.;  Act  of  July  4,  1S40:  U.  S. 
Stat,  at  Large,  VI,  802. 


THE  GOVERNMENT  AND  THE  PRESS    481 

ernment.  Seditious  libel,  as  found  in  England/  is  un- 
known in  this  country,  and  libel  here  is  conceived  as 
merely  an  offense  against  the  person  defamed.  For  such 
an  offense,  a  newspaper  proprietor  or  editor  is  liable 
precisely  as  any  other  person  would  be. 

Furthermore,  prosecutions  or  civil  actions  for  libel  are 
within  the  province  of  the  State  judiciary,  and  are  there- 
fore inappropriate  as  instruments  for  vindicating  the 
Federal  Government  against  abuse.  Even  such  laws  as 
we  now  have  in  the  United  States  requiring  the  regis- 
tration of  the  owners,  managers,  and  editors  of  publica- 
tions were  not  in  existence  during  the  Civil  War,  and  it 
was  an  easy  matter  to  conceal  the  actual  ownership  of 
a  newspaper.  When  all  of  these  legal  limitations  are 
taken  into  account,  the  difficulties  encountered  by  the 
Lincoln  Government  in  dealing  with  journalistic  offenses 
may  be  better  appreciated. 

II 

A  striking  fact  concerning  the  subject  of  journalistic 
activity  during  the  Civil  War  was  the  lack  of  any  real 
censorship.  There  were,  it  is  true,  some  efforts  to  estab- 
lish a  telegraphic  censorship.  In  April,  1861,  the  Gov- 
ernment took  exclusive  control  of  the  telegraph  lines  radi- 
ating from  Washington;  and  the  function  of  censoring 
the  dispatches  sent  over  the  wires  from  the  national 

'  A  British  statute  of  December  30,  1819,  dealt  with  "blasphemous  .  .  . 
or  .  .  .  seditious  hbel,  tending  to  bring  into  Hatred  or  Contempt  the 
Person  of  His  Majesty,"  etc.  (60  Geo.  Ill,  &  1  Geo.  IV,  Cap.  viii.) 
Concerning  earlier  English  law  on  the  subject  of  sedition,  see  Chafee, 
Freedom  of  Speech,  21  et  seq.  The  Americans,  says  Chafee,  detested 
the  English  law  of  sedition,  which  was  a  "product  of  the  view  that 
the  government  was  master"  while  Americans  believed  that  the  Gov- 
ernment was  servant,  and  one  of  the  purposes  of  the  First  Amendment 
was  to  get  rid  of  the  English  crime  of  sedition.  Chafee  shows  that  at- 
tempts shoiily  after  1800  to  revive  common  law  prosecutions  for 
seditious  libel  in  this  country  were  a  complete  failure.    {Ibid.,  pp.  30-31.) 


482  THE  CONSTITUTION  UNDER  LINCOLN 

capital  was  at  different  times  under  the  charge  of  the 
Treasury,  the  State,  and  the  War  Departments.  Oper- 
ating under  instructions  from  the  Cabinet  ofl&cer  in  whose 
department  he  was  placed,  the  censor  excluded  com- 
munications giving  military  information,  and  also  those 
which  were  deemed  to  convey  too  much  news  concerning 
the  activities  of  the  Government.  Reports  of  delicate 
diplomatic  questions,  criticisms  of  Cabinet  members, 
comments  giving  the  mere  opinion  of  correspondents, 
advance  information  of  contemplated  measures,  and 
stories  injurious  to  the  reputation  of  officers,  were  denied 
the  wires. 

A  sort  of  "entente  cordials"  between  the  Government 
and  the  newspaper  correspondents  was  attempted.  In  a 
conference  of  the  press  representatives  with  General 
McClellan  in  August,  1861,  a  "treaty  of  peace  and 
amity"  (as  Russell  of  the  London  Times  called  it)  was 
drawn  up.  It  was  agreed  that  the  editors  were  to  ab- 
stain from  printing  anything  which  could  give  aid  or 
comfort  to  the  enemy,  and  a  like  caution  was  to  be 
observed  by  the  correspondents.  In  return,  the  Govern- 
ment was  to  give  the  press  adequate  facilities  for  obtain- 
ing and  transmitting  suitable  intelligence,  especially 
touching  military  engagements.  Thus  a  7?wdus  vivendi 
was  to  be  inaugurated  which  would  do  away  with  the 
necessity  of  any  censorship.  For  various  reasons,  how- 
ever, the  scheme  broke  down.  Editors  differed  from  the 
Government  as  to  what  was  proper  to  print;  many 
papers  refused  to  limit  themselves  by  any  such  pledge; 
and  the  intense  rivalry  of  newspapers  proved  more 
powerful  than  the  restraints  of  any  voluntary  agreement. 

After  nearly  a  year  of  experimentation,  an  adminis- 
trative policy  of  telegraphic  control  was  evolved.  Be- 
ginning with  February  2,  1862,  it  was  ordered  that  the 
President,    by    virtue    of    congressional    authorization, 


THE  GOVERNMENT  AND  THE  PRESS    483 

would  establish  military  supervision  of  all  telegraph 
lines  in  the  United  States,  the  censoring  function  being 
lodged  with  the  War  Department.  All  telegraphic  com- 
munications concerning  military  matters  not  authorized 
by  the  Secretary  of  War,  or  the  commanding  general  of 
the  district,  were  forbidden;  no  further  facilities  for 
receiving  information  by  telegraph  or  transporting  their 
papers  by  railroad  were  to  be  extended  to  journals  vio- 
lating the  order;  and  for  the  general  supervision  of  tele- 
graphic business  a  special  officer  was  appointed  with  the 
title  of  Assistant  Secretary  of  War  and  General  Manager 
of  Military  Telegraphs.  In  the  sifting  of  news  the  Amer- 
ican Telegraph  Company  cooperated  with  the  Govern- 
ment, requiring  oaths  of  loyalty  and  secrecy  from  em- 
ployees and  allowing  no  access  to  the  messages  or  the 
operating  rooms  except  to  those  duly  authorized  by  the 
Government  telegraph  manager.  No  unofficial  messages 
conveying  military  information  were  transmitted  by 
wire;  and  news-writers  were  forced  to  bring  in  their  war 
stories  in  person,  to  employ  a  messenger,  or  to  use  the 
mails.  As  a  further  precaution  communications  were 
sent  in  code,  and  the  cipher  operator  constituted  at  all 
times  an  important  medium  between  officers.^ 

This  governmental  supervision  of  the  telegraph  was 
but  a  feeble  measure  of  news  control.  In  the  early  days 
of  the  censorship,  when  the  suppression  of  messages  was 
limited  to  Washington,  ''contraband"  intelligence  might 
be  transmitted  through  the  telegraph  offices  of  Balti- 
more, Philadelphia,  or  New  York.  Information  of  a 
highly  confidential  nature  might  be  suppressed  in  Wash- 
ington and  then  sent  over  the  wires  from  other  points. 
Even  after  the  control  of  the  telegraph  became  general, 

'House  Rep.  No.  64,  37  Cong.,  2  sess.;  O.  R.,  Ser.  II,  Vol.  2,  p.  40; 
Ser.  Ill,  Vol.  1,  pp.  324,  394-395;  Nicolay  and  Hay,  Lincoln,  V,  141; 
Russell,  My  Diary,  North  and  South,  Aug.  5,  1861;  July  10,  1861. 


484  THE  CONSTITUTION  UNDER  LINCOLN 

messages  could  be  freely  sent  by  mail,  and  this  became 
the  regular  method  by  which  reporters  at  the  front  con- 
veyed their  "copy."  Throughout  the  war  unauthorized 
news  items  continually  found  their  way  into  print 
through  numerous  unsealed  channels.  Even  the  process 
of  communication  between  the  generals  in  the  field  and 
the  War  Department  was  by  no  means  water-tight,  and 
news  trickled  out  through  mysterious  "leaks."  As  for  a 
really  effective  censorship,  which  would  deal  in  a  compre- 
hensive way  with  the  general  problem  of  publicity,  it  was 
not  even  attempted. 

Ill 

This  laxity  of  press  control  coincided  with  a  period  of 
remarkable  activity  in  journalistic  enterprise.^  For  cover- 
ing the  campaigns  of  the  war  the  great  metropolitan 
dailies  developed  elaborate  organizations  and  expended 
huge  sums.  Newspaper  correspondents  were  everywhere. 
Many  of  them  had  official  positions  as  government  clerks, 
army  nurses,  or  signal  officers,  and  were  thus  advanta- 
geously placed  for  obtaining  news.  They  attached  them- 
selves to  generals'  headquarters,  dined  at  officers'  mess, 
had  the  use  of  army  horses  and  wagons,  were  supplied 
with  government  passes  enabling  them  to  witness  battles 
and  pass  freely  through  the  armies,  sailed  on  admirals' 
flagships,  took  passage  on  army  trains  or  government 
steamers,  and  were  at  times  even  employed  for  the  con- 
veyance of  confidential  dispatches. 

The  typical  correspondent's  first  thought  was  for  his 
newspaper,  and  his  chief  concern  was  to  scent  the  kind 
of  "copy"  that  his  readers  demanded.  The  possibility 
that  such  "copy"  might  reveal  military  secrets,  defame  a 

•The  author  has  treated   the   newspaper  during  the   Civil   War   in 
the  Amer.  Hist.  Rev.,  XXIII,  303-323. 


THE  GOVERNMENT  AND  THE  PRESS    485 

general,  or  undermine  public  confidence  in  the  Govern- 
ment's conduct  of  the  war,  was  usually  considered  of 
secondary  importance.  Such  generals  as  Grant  and  Sher- 
man, who  kept  their  counsel  and  avoided  reporters,  were 
written  down;  while  inferior  men  gained  brilliant  repute 
by  means  of  favors  given  at  Government  expense  to  cor- 
respondents. The  "special's"  story  had  to  be  written  at 
all  events,  and  if  reliable  news  was  wanting,^"  the  account 
would  be  made  up  from  guesswork,  ofi"-hand  prophecy, 
camp  gossip,  or  the  indiscreet  utterances  of  some  dis- 
gruntled subordinate  officer.  Certain  men,  as  a  matter 
of  policy,  must  be  played  up  as  heroes,  while  others 
were  denounced,  and  always  the  partisan  flavor  of  the 
reporter's  paper  was  preserved. 

The  continual  revelation  of  military  information  by 
the  newspapers  of  the  Civil  War  period  seems  a  shock- 
ing thing  in  contrast  to  the  elaborate  restrictions  that 
were  imposed  for  safeguarding  military  secrecy  during 
the  World  War.  Plans  of  campaign,  movements  of 
troops,  the  location  and  strength  of  mihtary  units — all 
such  information  was  regularly  published  to  the  world. 
An  account  of  Grant's  movements,  selected  at  random 
from  the  New  York  Daihj  News,  gives  the  course  of 
march  of  a  cavalry  division,  refers  to  reenforcements 
from  Meade,  and  proclaims  the  assembling  of  Generals 
Grant,  Meade,  and  Butler  at  Burnside's  headquarters. 
This  is  but  typical  of  the  sort  of  detailed  information 


"The  following  example  will  illustrate  the  unreliable  nature  of  some 
of  the  wartime  news.  The  New  York  Tribune,  on  September  5,  1861, 
contained  this  statement:  "The  report  of  the  death  of  Jefferson 
Davis  is  confirmed  by  information  which  appears  trustworthy."  There 
followed  a  brief  account  of  Davis'  life.  On  September  7th  the  Tribune 
said,  in  commenting  on  the  favorable  attitude  toward  Davis  taken  by 
Governor  Magoffin  of  Kentucky:  "But  Davis  is  dead  actually  and 
Magoffin  is  so  politically."  (New  York  Tribune,  Sept.  5,  1861,  p.  4; 
Sept.  7,  1861,  p.  4..} 


486   THE  CONSTITUTION  UNDER  LINCOLN 

which  the  papers  constantly  supplied.    At  the  time,  Lee 
did  not  know  that  Bumside  was  still  with  Grant." 

A  copy  of  the  Chicago  Times  in  September,  1863, 
which  promptly  reached  the  headquarters  of  the  Con- 
federate general,  Braxton  Bragg,  contained  the  following 
account  of  the  movements  of  the  Federal  army:  ^^ 

Crittenden's  Corps  moved  eastward  to  feel  the  strength  of 
the  enemy,  with  the  intention  of  crossing  the  mountains  to  the 
north  and  east  of  Chattanooga,  crossing  the  Tennessee  river 
at  a  ford  some  thirty  miles  above  Chattanooga.  This  crossing 
safely  effected,  Crittenden  will  swing  into  the  rear  of  Chatta- 
nooga, and  if  possible  take  the  place.  The  intention  is  to 
strike  that  point  offensively  at  the  same  time  that  Burnside 
attacks  Buckner  at  Knox\-ille.  This  will  at  once  prevent 
Buckner  from  receiving  any  reenforcements,  and  also  if  not 
captured  greatly  endanger  his  retreat,  for  it  will  be  impossible 
to  retreat  toward  Bragg.  Meanwhile,  if  Crittenden  succeeds 
well  in  his  efforts  upon  Chattanooga  .  .  .  ,  Thomas  and  Mc- 
Cook  wijl  move  rapidly  upon  Rome,  Georgia.  .  .  .  It  is  .  .  . 
believed  that  Bragg  will  not  resist  at  Rome.  .  .  .  Rosecrans 
will,  if  possible,  whip  Bragg  in  detail,  disperse  his  forces,  and 
then  attack  Johnston  alone,  for  united  the  two  rebel  armies 
would  certainly  outnumber  ours. 

]Many  instances  of  the  same  sort  could  be  mentioned. 
The  location  of  Grant's  guns  secretly  placed  against 
Vicksburg  in  1863  was  published;  his  proposed  concen- 
tration upon  City  Point  in  July,  1864,  was  revealed; 
Sherman's  objectives  in  his  Georgia  march  and  the  dis- 
position of  his  various  corps  were  proclaimed;  full  de- 
tails concerning  the  land  and  sea  expedition  against  Wil- 
mington,   N.    C,    in    December,    1864,    were   supplied. 


*^New  York  Daily  News,  July  2,  1864;  Lee's  Confidential  Dispatches 
to  Davis,  272. 
"0.  R.,  Ser.  I,  Vol.  30,  pt.  4,  p.  600. 


THE  GOVERNMENT  AND  THE  PRESS    487 

Northern  papers  practically  functioned  as  Confederate 
spies  in  Union  camps,  for  copies  of  these  journals  were 
easily  obtained  by  Southern  generals.  General  Lee,  with 
a  practiced  eye  for  detecting  miUtary  information,  regu- 
larly scanned  the  enemy's  papers;  and  his  confidential 
dispatches  to  President  Davis  show  that  he  gained  many 
bits  of  valuable  information  concerning  the  army  of  the 
Potomac  at  times  when  the  Union  generals  were  quite 
mystified  as  to  his  own  forces. ^^ 

In  addition  to  this  revelation  of  military  information, 
it  must  be  remembered  that  numerous  powerful  news- 
papers of  the  North  were  openly  hostile  to  the  Govern- 
ment in  their  editorial  utterances,  and  pursued  their  en- 
mity toward  the  administration  to  the  point  of  encour- 
aging disloyalty.  Early  in  1863,  for  instance,  the  New 
York  World  thus  spoke  of  Lincoln's  policy  of  emanci- 
pation : 

We  have  doubtless  surfeited  our  readers  with  specimens  of 
the  turgid,  ranting  and  senseless  predictions  of  the  emancipa- 
tionists; but  nauseous  and  disgusting  as  is  the  dose,  we  must 
insist  on  repeating  it  in  still  larger  measure.  Nothing  is  more 
important  than  that  the  people  should  understand  the  claims 
to  statesmanship  of  their  actual  rulers.  It  is  by  this  miserable 
balderdash  that  the  country  is  governed.  The  administration 
shines,  like  the  moon,  by  reflected  light.  It  borrows  its  ideas 
and  its  policy  so  far  as  it  has  any,  from  these  crazy  radicals. 
.  .  .  By  surrendering  itself  to  their  wild  and  reckless  guidance 
it  is  ruining  the  country ;  and  it  is  important  that  the  people 
should  see,  even  at  the  expense  of  a  good  deal  of  disgust  and 
loathing,  what  has  been  substituted  in  the  public  counsels  for 
statesmanlike  sagacity  and  far-seeing  wisdom.^* 


"Am.  Hist.  Rev.,  as  above  cited. 

"The  editorial  continued  by  giving  extracts  from  Greeley's  Tribune 
concerning  emancipation.     (New  York  World,  Feb.  7,  1863.) 


488  THE  CONSTITUTION  UNDER  LINCOLN 

Yet  the  World  was  not  one  of  the  extreme  anti-war  or 
peace-at-any-price  sheets,  but  a  great,  respectable  news- 
paper which  professed  loyalty  to  the  Union  cause. 

In  its  editorial  pages  the  Chicago  Times  continually 
flayed  the  President  in  a  tone  which  suggested  personal 
malice.  At  the  time  of  Lincoln's  second  inauguration, 
on  March  4,  1865,  the  Times  spoke  as  follows:  ^^ 

The  inaugural  addresses  of  the  past  presidents  of  the  United 
States  are  among  the  best  of  our  state  papers.  .  .  .  Contrast 
with  these  the  inaugural  address  of  Abraham  Lincoln  deliv- 
ered in  the  City  of  Washington  on  Saturday  and  printed  in 
these  columns  this  morning!  "What  a  fall  was  there,  my 
countr>-men."  Was  there  ever  such  a  coming  out  of  the  little 
end  of  the  horn?  Was  ever  a  nation,  once  great,  so  belittled? 
Is  such  another  descent  of  record  in  the  history  of  any  people? 
We  had  looked  for  something  thoroughly  Lincolnian,  but  we 
did  not  foresee  a  thing  so  much  more  Lincolnian  than  anything 
that  has  gone  before  it.  We  did  not  conceive  it  possible  that 
even  Mr.  Lincoln  could  produce  a  paper  so  slipshod,  so  loose- 
jointed,  so  puerile,  not  alone  in  literary  construction,  but  in  its 
ideas,  its  sentiments,  its  grasp.  ...  By  the  side  of  it,  medioc- 
rity is  superb. 

The  following  comment  which  appeared  in  the  Balti- 
more Exchange  suggests  strong  sympathy  with  the  cause 
of  disunion :  ^® 

The  war  of  the  South  is  the  war  of  the  people,  supported  by 
the  people.  The  war  of  the  North  is  the  war  of  a  party,  at- 
tempted to  be  carried  on  by  poHtical  schemers,  independently 
of  the  people,  on  the  credit  of  a  divided  country,  and  on  the 
.  .  .  faith  of  an  old  Union — which  has  in  reality  ceased  to 
exist. 

Though  selections  of  this  sort  could  be  extended  almost 
indefinitely,  one  more  must  sufl&ce.    When  the  President 

"Editorial,  Chicago  Times,  Mar.  6,  1865. 
"Baltimore  Exchange,  July  10,  1861. 


THE  GOVERNMENT  AND  THE  PRESS    489 

in  the  summer  of  1864  issued  a  call  for  an  additional 
500,000  men,  the  Indianapolis  Sentinel  thus  appealed  to 
its  readers:  ^'^ 

We  ask  the  plain,  sober,  thinking  people  of  Indiana  to  re- 
flect seriously  upon  the  present  condition  of  public  affairs. 
What  confidence  can  be  placed  in  the  capacity  and  integrity 
of  the  men  who  are  administering  the  government  when  the 
events  of  the  past  three  years  are  reviewed?  Notwithstanding 
the  assurance  given  from  time  to  time  .  ,  .  that  each  [call] 
was  to  be  the  last,  and  that  no  more  would  be  necessary  for 
the  suppression  of  the  rebellion,  at  this  late  day  the  President 
issues  a  call  for  five  hundred  thousand  more  men!  .  .  .  Can 
we  arrive  at  any  other  conclusion  .  .  .  than  that  the  "best 
government  on  earth"  will  be  destroyed  if  the  present  party 
rule  is  perpetuated? 

One  can  easily  imagine  the  effect  of  such  language 
upon  that  public  morale  which  is  so  essential  for  the 
support  of  armies  in  the  field;  and  yet  the  above  ex- 
tracts are  not  examples  of  the  worst  utterances  that  may 
be  found  in  the  newspapers  of  the  time,  but  rather  of 
the  daily  tone  of  many  powerful  journals.  They  are  rep- 
resentative of  the  sort  of  injurious  journalism  which 
the  administration  regularly  tolerated,  while  instances 
of  governmental  repression  directed  against  newspapers 
were  but  the  exception. 

IV 

Having  noted  those  forms  of  newspaper  activity  which 
hurt  the  Government,  we  may  now  inquire  as  to  the 
measures  adopted  for  controlling  these  abuses.  In  the 
first  place  it  should  be  noted  that  correspondents  accom- 
panying the  armies  had  the  status  of  civilian  camp-fol- 
lowers and  were  within  the  range  of  military  jurisdiction, 

"Editorial,  Daily  State  Sentinel  (Indianapolis),  July  28,  1864. 


490  THE  CONSTITUTION  UNDER  LINCOLN 

being  subject  to  punishment  by  court-martial  for  viola- 
tion of  any  part  of  the  military  code.  In  particular,  the 
57th  Article  of  War  fitted  their  case.  This  provided  that 
any  one  "convicted  of  holding  correspondence  with,  or 
giving  intelligence  to,  the  enemy,  either  directly  or  indi- 
rectly," should  suffer  death,  or  such  other  punishment 
as  a  court-martial  should  decree.^^ 

As  against  news  writers  this  section  of  the  military  code 
was  rarely,  if  ever,  applied.  General  Sherman,  who  was 
constantly  urging  vigorous  measures  against  offending 
correspondents,  initiated  a  case  against  a  reporter  who 
wrote  accounts  of  the  Union  operations  at  Vicksburg; 
but  conviction  failed  because  of  the  court's  ruling  that 
the  identical  communication  must  be  proved  to  have 
gone  to  the  enemy,  and  such  evidence  was  not  at  hand.^® 
This  part  of  the  military  law,  however,  was  often  referred 
to  in  army  orders  and  offered  a  military  means  of  news 
control.  A  general  order  of  the  War  Department  was 
issued  amplifying  this  "article"  by  declaring  that  all  cor- 
respondence, verbal  or  in  writing,  printing  or  telegraph- 
ing, concerning  military  operations  or  movements  on  land 
or  water,  or  regarding  troops,  camps,  arsenals,  intrench- 
ments,  or  military  affairs  within  the  several  miUtary  dis- 
tricts, by  which  intelligence  might  be  given  to  the  enemy, 
without  the  sanction  of  the  general  in  command,  was 
prohibited ;  and  that  violators  would  be  proceeded  against 
under  the  57th  Article  of  War.-*^ 

An  instance  of  military  justice  directed  against  an 
editor  is  to  be  found  in  the  case  of  Edmund  J.  Ellis, 
editor  and  proprietor  of  the  Boone  County  Standard  of 


"  U.  S.  Stat,  at  Large,  II,  366. 

"General  W.  T.  Shprman  to  John  Sherman,  dated  "Camp  before 
Vicksburg,"  Feb.  12,  1863:  The  Sherman  Letters,  ed.  by  Rachel  S. 
Thomdike,  190. 

"0.  R.,  Ser.  Ill,  Vol.  1,  p.  390. 


THE  GOVERNMENT  AND  THE  PRESS     491 

Columbia,  Missouri.  Because  of  certain  articles  which 
appeared  in  his  paper,  Ellis  was  arraigned  before  a  mili- 
tary commission  in  February,  1862,  charged  with  "the 
publication  of  information  for  the  benefit  of  the  enemy 
and  encouraging  resistance  to  the  Government  and  laws 
of  the  United  States."  Ellis'  plea  denied  the  jurisdic- 
tion of  a  military  commission  over  his  case,  declaring 
that  the  matters  charged  were  "wholly  and  exclusively 
of  civil  cognizance."  He  was  nevertheless  found  guilty 
and  banished  from  Missouri  during  the  war,  while  the 
press,  type  and  equipment  of  his  newspaper  were 
confiscated. 2^ 

As  in  all  wars,  intercourse  with  the  enemy  was  inter- 
dicted, except  under  flags  of  truce  or  on  the  basis  of 
special  executive  permits.  In  the  opinion  of  the  Judge 
Advocate  General,  this  prohibition  made  illegal  a  system 
of  correspondence  maintained  between  Northern  and 
Southern  papers  by  means  of  publications  entitled  "per- 
sonals." It  was  always  within  the  power  of  a  general  to 
exclude  reporters  from  his  lines,  and  in  a  number  of  cases 
this  measure  was  applied.  The  exclusion  of  particular 
men,  while  others  were  admitted,  was  sometimes  accom- 
plished by  requiring  passes  which  could  be  denied  to 
hostile  journalists  or  those  who  disregarded  regulations. 

A  very  extreme  measure  which  was  threatened  but,  it 
would  seem,  never  actually  applied,  was  to  treat  reporters 
as  spies.  Sherman,  for  instance,  announced  at  one  time 
that  all  correspondents  accompanying  his  expedition 
should  be  so  treated,  declaring  that  they  were  spies 
because  their  publications  reached  the  enemy,  giving 
minute  information  concerning  his  forces.^-  This  threat 
does  not  appear  to  have  been  enforced  in  any  actual  in- 


Ibid.,  Ser.  II,  Vol.  1,  pp.  453-457. 
'  The  Sherman  Letters,  ed.  by  Rachel  S.  Thomdike,  187. 


492  THE  CONSTITUTION  UNDER  LINCOLN 

stance.  Unless  the  informer  could  be  shown  to  be  in  the 
employ  of  the  enemy,  the  term  spy  would  be  inappro- 
priate, while  in  any  case  the  57th  Article  of  War  was 
a  suflficient  weapon  without  raising  the  question  as  to 
whether  the  offender  was  a  ''spy"  or  not.  Though,  in 
general,  military  control  over  correspondents  may  have 
been  possible  under  existing  rules,  it  was  not,  in  fact, 
made  effective.  The  ingenuity  and  persistence  of  news- 
paper men  were  difficult  to  deal  with;  and,  as  we  have 
seen,  publication  of  military  information  continued  on 
an  extensive  scale  throughout  the  war. 


Where  the  activities  of  a  newspaper  produced  too  grave 
a  menace,  it  sometimes  happened  that  the  newspaper 
itself  was  "suppressed,"  which  usually  meant  that  by 
military  action  its  publication  was  temporarily  sus- 
pended. Cases  in  which  this  drastic  method  of  press 
control  was  applied  were  fairly  numerous,  although  it 
is  also  true  that  throughout  the  war  the  most  flagrant 
disloyalty  was  suffered  to  continue  in  many  prominent 
papers.  Among  the  newspapers  subjected  for  a  time  to 
military  "suppression"  -^  were  the  Chicago  Times,  the 
New  York  World,  the  New  York  Journal  of  Commerce, 
the  Dayton  (0.)  Empire,  the  Louisville  (Ky.)  Courier, 
the  New  Orleans  Crescent,  the  South  of  Baltimore,  the 
Maryland  News  Sheet  of  Baltimore,  the  Baltimore  Ga- 
zette, the  Daily  Baltimore  Republican,  the  Baltimore 
Bulletin,  the  Philadelphia  Evening  Journal,   the  New 

"The  Bee,  the  Delta,  and  the  Crescent  of  New  Orleans  were  sup- 
pressed by  General  B.  F.  Butler,  and  the  Daily  Times  and  the  Banner 
of  Nashville  were  suppressed  by  Governor  Andrew  Johnson.  {Private 
anvd  Official  Correspondence  o]  B.  F.  Butler,  I,  476;  Hall,  Andrew 
Johnson,  Military  Governor  oj  Tennessee,  43.) 


THE  GOVERNMENT  AND  THE  PRESS    493 

Orleans  Advo<^ate,  the  New  Orleans  Courier,  the  Balti- 
more Transcript,  the  Thibodaux  (La.)  Sentinel,  the 
Cambridge  (Md.)  Democrat,  the  Wheeling  Register,  the 
Memphis  News,  the  Baltimore  Loyalist,  and  the  Louis- 
ville True  Presbyterian.-^ 

A  detailed  examination  of  the  circumstances  of  these 
various  suppressions  is  impossible  here,  but  the  two 
most  striking  instances,  those  of  the  Chicago  Times  and 
the  New  York  World,  may  be  discussed  with  some 
fullness. 

The  suppression  of  the  Chicago  Times  was  an  inci- 
dent closely  bound  up  with  the  agitation  concerning 
Vallandigham.  As  the  latter's  arrest  for  a  disloyal 
speech  was  an  instance  of  military  action  unprompted 
by  the  Washington  administration,  so  also  the  seizure 
of  the  paper  was  a  measure  taken  on  the  initiative  of 
General  Burnside.  Because  of  comments  severely  at- 
tacking the  administration  and  expressing  sympathy  for 
Vallandigham,  General  Burnside,  on  June  1,  1863,  issued 
"General  Order  No.  84,"  which  contained  the  following 
paragraph :  "On  account  of  the  repeated  expression  of  dis- 
loyal and  incendiary  sentiments,  the  publication  of  the 
newspaper  known  as  the  Chicago  Times  is  hereby  sup- 
pressed." Brigadier  General  Ammen,  commanding  the 
district  of  Illinois,  was  charged  with  the  execution  of 
this  order,  and  under  his  authority  Captain  Putnam,  in 
command  at  Camp  Douglas,  Chicago,  warned  the  man- 
agement that  the  paper  must  not  be  issued  on  the  morn- 
ing of  the  3rd,  under  penalty  of  military  seizure.-^ 

A  civil  remedy  for  restraining  the  military^  authorities 

**  For  the  suppression  of  newspapers  the  principal  source  is  the  Offi- 
cial Records.  The  general  index  and  the  volume  indexes  cite  the 
papers  on  which  information  is  to  be  found.  See  also  Ann.  Cyc,  1864, 
pp.  393-394;  Check  List  of  American  Newspapers,  Library  of  Congress, 
81  et  seq. 

"Ann.  Cyc,  1863,  pp.  423  et  seq.;  0.  R.,  Ser.  I,  Vol.  23,  pt.  2,  p.  381. 


494  THE  CONSTITUTION  UNDER  LINCOLN 

was  now  attempted.  Upon  application  of  the  publishers, 
Judge  Drummond  of  the  Federal  circuit  court  issued  a 
writ  of  injunction  temporarily  restraining  Captain  Put- 
nam from  any  interference  with  the  publication  of  the 
paper  until  the  question  of  granting  a  permanent  injunc- 
tion could  be  heard  in  open  court.  This  judicial  order 
was  disregarded ;  and  in  the  early  morning  of  the  3rd  the 
oflBce  was  seized,  and  the  publication  of  that  morning's 
issue  prevented.  There  were  no  further  proceedings  on 
the  injunction. 

Agitation  ran  high  in  the  city  and  various  citizens' 
meetings  were  hastily  called.  Resolutions  of  protest 
adopted  by  a  mass  meeting  held  in  the  courthouse 
square  on  the  evening  of  the  3rd,  were  matched  by  reso- 
lutions of  approval  passed  on  the  following  night  by  the 
"loyal  citizens  of  Chicago."  To  these  latter  the  idea  of 
suppressing  the  Times  was  not  new;  for  nearly  a  year 
before  Governor  Yates  had  reported  that  the  immediate 
suppression  of  the  paper  was  the  "urgent  and  almost 
unanimous  demand"  of  the  "loyal  citizens"  of  the  city, 
and  that  unless  this  action  were  taken  he  feared  that  the 
people  would  take  the  matter  into  their  own  hands.-' 

The  action  of  President  Lincoln  concerning  the  sup- 
pression of  the  Times  was  taken  with  deliberation  after 
a  careful  balancing  of  motives.  According  to  Secretary 
Welles,  the  President  and  every  member  of  the  Cabinet 
regretted  Bumside's  act.-^  On  the  day  the  order  was 
issued  Stanton  directed  a  letter  to  Burnside  expressing 
the  President's  disapproval  of  the  action  of  General  Has- 
call  who  had  interfered  in  various  ways  with  certain 
newspapers  in  Indiana.  He  advised  Burnside  that  the 
dissatisfaction  within  his  department  would  only  be  in- 


*•  Yates  to  Stanton,  Aug.  7,  1S62:     0.  R.,  Ser.  Ill,  Vol.  2,  p.  316. 
"Diary  of  Gideon  Welles,  I,  321. 


THE  GOVERNMENT  AND  THE  PRESS  4^5 

creased  ''by  the  presence  of  an  indiscreet  military  officer 
who  will  .  ,  .  produce  irritation  by  assuming  military 
powers  not  essential  to  the  preservation  of  the  public 
peace."  ^^  Having  written  thus,  Stanton  added  the  fol- 
lowing significant  postscript  after  word  of  the  order  con- 
cerning the  Times  had  been  received: 

Since  writing  the  above  letter  the  President  has  been  in- 
formed that  you  have  suppressed  the  publication  or  circulation 
of  the  Chicago  Times  in  your  department.^*  He  directs  me  to 
say  that  in  his  judgment  it  would  be  better  for  you  to  take  an 
early  occasion  to  revoke  that  order.  The  irritation  produced 
by  such  acts  is  in  his  opinion  hkely  to  do  more  harm  than  the 
publication  would  do.  The  Government  approves  of  your 
motives  and  desires  to  give  you  cordial  and  efficient  support. 
But  while  military  movements  are  left  to  your  judgment,  upon 
administrative  questions  such  as  the  arrest  of  civilians  and  the 
suppression  of  newspapers  not  requiring  immediate  action  the 
President  desires  to  be  previously  consulted.^" 

Had  this  word  from  Washington,  tactfully  advising 
Bumside  to  revoke  his  own  order,  been  transmitted  by 
telegraph  instead  of  by  mail,  it  is  possible  that  the  Times 
might  never  have  been  actually  suppressed.  Certainly 
it  would  never  have  been  if  that  general  had  consulted 
Washington  first.  As  to  overruling  Bumside,  that  was 
a  course  which  the  President  was  reluctant  to  take,  since 
he  dreaded  the  weakening  of  the  military  authority.  On 
the  4th  of  June,  however,  a  Cabinet  meeting  having 
intervened,  this  step  was  taken. ^^     The  revocation  of 


"O.  R.,  Ser.  II,  Vol.  5,  p.  723. 

"This  doubtless  refers  to  Bumside's  "General  Order  number  84" 
above  mentioned.  The  publication  of  the  Times  was  suppressed  and 
the  circulation  of  the  New  York  World  within  the  department  was  pro- 
iibited. 

'"O.  R.,  Ser.  II,  Vol.  5,  p.  724. 

'Ubid.,  Ser.  Ill,  VdJ.  3,  p.  252. 


496  THE  CONSTITUTION  UNDER  LINCOLN 

Burnside's  order  was  communicated  by  telegram  through 
Secretary  Stanton,  and  the  publication  of  the  paper  was 
resumed. ^2 

The  case  of  the  New  York  World  presents  some  inter- 
esting differences  from  that  of  the  Chicago  Times;  for, 
unlike  Burnside,  General  Dix  at  New  York  acted  reluc- 
tantly under  a  specific  presidential  order.  Moreover,  in 
the  New  York  case  the  legal  methods  of  resistance  at- 
tempted in  the  city  and  State  differed  widely  from  those 
taken  in  Chicago.  The  World,  in  the  issue  of  May  18, 
1864,  published  a  bogus  proclamation  of  President  Lin- 
coln, gloomily  recalling  recent  disasters,  setting  a  day  for 
public  humiliation  and  prayer,  and  calling  for  400.000 
men.  On  the  day  of  the  publication  of  this  forged  docu- 
ment, the  following  order  of  the  President  was  obtained 
through  the  action  of  Secretary  of  War  Stanton  and  sent 
to  General  Dix,  who  was  in  command  at  New  York :  ^^ 

Whereas,  there  has  been  wickedly  and  traitorously  .  .  . 
published  this  morning,  in  the  New  York  World  and  the  New 
York  Journal  of  Commerce  ...  a  false  and  spurious  procla- 
mation purported  to  be  signed  by  the  President  .  .  .  which 
...  is  of  a  treasonable  nature  designed  to  give  aid  and  com- 
fort to  the  enemies  of  the  United  States  .  .  .  you  are  therefore 
commanded  forthwith  to  arrest  and  imprison  .  .  .  the  editors, 
proprietors  and  publishers  of  the  aforesaid  newspapers,  and 
all  such  persons  as,  after  public  notice  has  been  given  of  the 
falsehood  of  said  publication,  print  and  publish  the  same  with 


**Oii  June  3  certain  prominent  citizens  decided  to  request  the  sus- 
pension of  Burnside's  order.  Senator  Lyman  Trumbull  and  Represen- 
tative I.  N.  Arnold  transmitted  this  request,  with  their  approval,  to 
Lincoln  by  wire.  Lincoln  himself  stated  that  this  dispatch  strongly 
influenced  him  in  favor  of  revoking  the  order.  (0.  R.,  Scr.  I,  Vol.  23, 
pt.  2,  p.  385;  Nicolay  and  Hay,  Works,  X,  108;  White,  Life  oj  Trumbull, 
206-209.) 

"New  York  World,  July  11,  1864.  Though  Lincoln  signed  this 
order,  it  appears  to  have  been  drafted  in  the  War  Department. 


THE  GOVERNMENT  AND  THE  PRESS    497 

intent  to  give  aid  and  comfort  to  the  enemy;  and  you  will 
hold  the  persons  so  arrested  in  close  custody  until  they  can  bo. 
brought  to  trial  before  a  military  commission  for  their  offense. 
You  will  also  take  possession  by  military  force,  of  the  printing 
establishments'  of  the  New  York  World  and  Journal  of  Com- 
merce, and  hold  the  same  until  further  orders,  and  prohibit  any 
further  publication  thereof. 

This  order  was  dated  "Executive  Mansion,  Washing- 
ton, D.  C,  May  18,  1864,"  and  it  was  signed  by  Abraham 
Lincoln,  President,  and  countersigned  by  William  H. 
Seward,  Secretary  of  State.  General  Dix  reluctantly  exe- 
cuted the  order  to  the  extent  of  taking  into  custody 
some  of  the  men  connected  with  the  management  of  the 
papers,  seizing  the  newspaper  ofl&ces,  and  holding  them 
under  mihtary  guard.  On  the  third  day  the  men  were 
released  and  the  suspension  discontinued. 

Owing  to  the  determined  intervention  of  Governor 
Seymour  of  New  York,  an  important  issue  concerning 
freedom  of  the  press  became  complicated  by  the  inter- 
jection of  a  conflict  between  State  and  Federal  jurisdic- 
tion. The  governor  caused  the  incident  to  be  brought 
to  the  attention  of  the  local  grand  jury,  but  this  body 
found  no  indictment  against  the  general  and  his  subordi- 
nate officers.  Instead,  they  passed  a  formal  resolution 
declaring  it  inexpedient  to  examine  into  the  matter.  The 
governor  then  sent  a  letter  to  A.  Oakey  Hall,  district 
attorney  of  the  County  of  New  York,  directing  him  to 
prosecute  the  officers  concerned  before  a  city  magistrate. 
As  a  result,  warrants  were  issued  for  the  arrest  of  Gen- 
eral Dix  and  his  subordinates  as  criminal  violators  of 
law,  on  the  charge  of  "kidnaping,"  and  "inciting  to 
riot."  Though  there  was  no  actual  physical  arrest,  the 
State  claimed  a  technical  arrest,  since  the  general  and 
the  other  defendants  gave  a  verbal  recognizance  which 
was  accepted  as  adequate  security  for  their  further  ap- 


498  THE  CONSTITUTION  UNDER  LINCOLN 

pearance.  The  case,  of  course,  came  directly  under  the 
fourth  section  of  the  Indemnity  Act,  which  has  been 
described  in  a  previous  chapter,  since  the  seizures  and 
arrests  had  been  made  in  obedience  to  a  specific  order 
of  the  President. 

In  due  course  the  case  of  The  People  vs.  John  A.  Dix 
and  Others  came  up  for  trial  before  City  Judge  A.  D. 
Russell.^*  Though  an  obscure  case  in  the  sense  that  it 
never  went  higher  than  the  municipal  court,  it  was  elab- 
orately argued  by  distinguished  counsel  and  it  involved 
legal  principles  of  great  importance.  In  their  endeavor 
to  sustain  the  rather  eccentric  charge  of  kidnaping  and 
inciting  to  riot,  the  prosecution  reviewed  the  testimony 
showing  that  a  Mr.  Halleck  of  the  World  had  been  taken 
into  custody  against  his  will,  and  that,  as  an  incident  of 
the  arrest,  crowds  assembled  and  a  turbulent  condition 
resulted.  New  York,  it  was  argued,  was  not  under  mar- 
tial law;  the  ordinary  courts  were  in  full  control  of  the 
city;  and  it  was  a  usurpation  to  hold  citizens  outside  the 
sphere  of  military  operations  amenable  to  militaiy  power. 
As  to  the  order  of  the  President,  that  itself  was  illegal, 
and  no  lawful  right  could  be  conferred  by  it.  Nor  could 
the  Indemnity  Act  of  March  3,  1863,  interposing  the 
President's  orders  as  a  defense  in  suits  against  govern- 
mental officers,  avail  in  such  a  case,  for  it  was  uncon- 
stitutional. 

The  counsel  for  the  defense  answered  that  since  the 
grand  jury  had  considered  the  case,  and  had  failed  to 
indict,  the  law  was  fully  vindicated.  It  was  argued  that 
a  state  of  war  existed  over  the  whole  countr}'-,  not  merely 
in  the  field 'of  actual  operations;  that  the  war  power 
resided  in  the  Federal,  not  the  State  government;  that 
the  Supreme  Court  had  declared  the  President   to  be 

-  New  York  World,  Aug.  8,  1864. 


THE  GOVERNMENT  AND  THE  PRESS    499 

clothed  with  the  war  power;  and  that  Congress  by  the 
Habeas  Corpus  Act  of  1863  had  authorized  imprisonment 
without  recourse  to  the  usual  channels  of  law.  It  was 
further  urged  that  no  criminal  intent  had  been  estab- 
lished on  the  part  of  the  defendants,  and  that  the  case 
did  not  come  within  the  legal  definition  of  kidnaping. 

The  prosecution  was  concluded  by  a  harmless  decision 
of  Judge  Russell,  affirming  the  unconstitutionality  of  the 
Indemnity  Act  and  decreeing  that  General  Dix  and  those 
associated  with  him  in  the  execution  of  the  President's 
order  should  be  held  "subject  to  the  action  of  the  grand 
jury  of  the  city  and  county." 

Concerning  the  main  principle  of  journalistic  freedom 
in  war  time,  the  Dix  case  settled  nothing ;  but  the  whole 
incident  has  a  certain  historical  importance  as  a  promi- 
nent example  of  newspaper  suppression.  As  Secretary 
Welles  tells  us,  the  President  assumed  full  responsibility 
for  the  suspension,^^  and  yet  the  arbitrary  character  of 
the  order  can  hardly  be  disputed.  The  presidential  order 
recited  as  a  fact  that  the  false  proclamation  had  been 
"wickedly  and  traitorously"  published;  yet  this  treason- 
able intent  was  not  asserted  even  by  General  Dix,  and  in 
the  trial  the  counsel  for  the  defense  commended  the  gen- 
eral's action  in  releasing  the  men  on  "discovering  them 
to  be  innocent."  The  order  was  a  hasty  one,  based  upon 
mere  suspicion  of  wrongful  intent,  and  the  administra- 
tion itself  felt  that  the  action  was  ill-advised. 


VI 

Besides  the  "suppression"  of  obnoxious  journals,  vari- 
ous other  measures  were  taken  in  dealing  with  the  news- 
paper problem.    In  some  cases  a  single  edition  of  a  paper 

'^  Diary  of  Gideon  Welles,  II,  67.    (July  5,  1864.) 


500  THE  CONSTITUTION  UNDER  LINCOLN 

was  seized.  Or  again,  the  circulation  of  a  paper  within 
a  given  area  would  be  prohibited.  The  circulation  and 
sale  of  the  Cincinnati  Enquirer  and  Chicago  Times  were 
temporarily  prohibited  by  General  Palmer  within  the 
Department  of  Kentucky;  ^^  and  General  Burnside  took 
similar  action,  excluding  the  New  York  World  from  the 
Department  of  the  Ohio.  Such  action  was  not  the  ex- 
clusion of  objectionable  matter  in  military  areas  and  for 
military  purposes,  but  rather  the  withholding  of  papers 
from  whole  districts  in  the  North  on  the  ground  of  dis- 
loyalty, and  was  intended  as  a  partial  measure  for  press 
control.  Even  in  New  Haven,  Connecticut,  for  instance, 
the  circulation  of  the  New  York  Daily  News  was  pro- 
hibited." 

Action  by  the  postal  authorities  was  naturally  invoked 
to  check  the  distribution  of  offensive  papers.  The  usual 
method  was  exclusion  of  specified  journals  from  the 
mails.^^  It  does  not  appear  that  any  postal  espionage 
(as  such)  existed,  though  the  State  and  War  departments 
did  undoubtedly  at  various  times  detain  and  open  let- 
ters in  search  of  treasonable  correspondence.  Intercourse 
with  the  enemy  was  of  course  prohibited,  and  there  were 
no  postal  facilities  between  the  seceded  States  and  the 
North.  Naturally  the  Post  Office  Department  cooper- 
ated with  the  military  authorities  in  the  prevention  of 
such  intercourse.^^ 

In  some  cases  the  Postmaster  General  in  denying  the 
mails  to  certain  papers  merely  carried  out  orders  origi- 
nating with  the  Secretary  of  State  or  the  Secretary  of 
War,  but  at  other  times  he  assumed  the  function  of  de- 
termining what  papers  should  be  excluded.    When  Post- 

"O.  R.,  Ser.  I,  Vol.  49,  pt.  2,  pp.  55,  139. 
"  Ihid.,  Scr.  II,  Vol.  2,  p.  54. 
"/6{(/.,  Ser.  I,  Vol.  50,  pt.  1,  p.  896. 
*"  Ibid.,  Ser.  II,  Vol.  2,  pp.  12-13,  1054. 


THE  GOVERNMENT  AND  THE  PRESS     501 

master  General  Blair,  in  the  latter  part  of  1861,  excluded 
certain  papers  condemned  as  disloyal  by  the  Federal 
grand  jury  at  New  York,  the  question  of  his  right  to  do 
so  was  raised  in  the  House  of  Representatives,  which 
instructed  its  Judiciary  Committee  to  "inquire  ...  by 
what  authority  of  Constitution  and  law,  if  any,  the  Post- 
master General  undertakes  to  decide  what  newspapers 
may  and  what  shall  not  be  transmitted  through  the  mails 
of  the  United  States."  ^» 

An  elaborate  reply  was  sent  by  the  Postmaster  General 
in  which  the  power  to  exclude  matter  from  the  mails  was 
fully  reviewed.^^  Starting  with  the  doctrine  that  free- 
dom of  the  press,  but  not  license,  is  guaranteed,  Blair 
declared  that  while  his  department  claimed  no  power  to 
suppress  treasonable  publications,  it  could  not  be  called 
upon  to  give  them  circulation.  "It  could  not  and  would 
not  interfere  with  the  freedom  secured  by  law,  but  it 
could  and  did  obstruct  the  dissemination  of  that  license 
which  was  without  the  pale  of  the  Constitution  and  law." 
Blair  then  quoted  Justice  Story's  view  that  the  First 
Amendment  was  not  intended  "to  secure  to  every  citizen 
an  absolute  right  to  speak,  or  write,  or  print  whatsoever 
he  might  please,"  but  that  it  merely  guaranteed  the  right 
of  the  citizen  to  utter  his  opinions  without  any  prior 
restraint  *-  so  long  as  he  did  no  injury  to  another  man's 
person,  property,  or  reputation,  and  caused  no  disturb- 
ance of  the  public  peace  or  subversion  of  the  Govern- 
ment. The  history  of  the  exclusion  of  certain  matter 
from  the  mails  during  Jackson's  administration  was  re- 
viewed;  and  it  was  pointed  out  that  the  right  of  the 


*"  House  Journal,  Dec.  1,  1862,  p.  7. 

"  House  Misc.  Doc.  No.  16,  37  Cong.,  3  sess.,  Jan.  20,  1863. 

*^  Chafee  shows  that  the  constitutional  guarantee  of  freedom  of 
speech  and  of  the  press  means  much  more  than  absence  of  prior  re- 
straint.    {Freedom  oj  Speech,  Ch.  i.) 


502  THE  CONSTITUTION  UNDER  LINCOLN 

Postmaster  General  to  know  the  contents  of  newspapers 
and  to  refuse  to  deliver  such  as  would  stir  up  murder  or 
insurrection,  was  upheld  at  the  time,  and  was  later  sus- 
tained by  an  opinion  of  Attorney  General  Holt.  In  this 
opinion  the  Attorney  General  had  said :  "On  the  whole  it 
seems  clear  to  me  that  a  deputy  postmaster  ...  is  not 
required  by  law  to  become  knowingly  the  enforced  agent 
or  instrument  of  enemies  of  the  public  peace,  to  dissemi- 
nate, in  their  behalf,  .  .  .  printed  matter  the  design  and 
tendency  of  which  are  to  promote  insurrection." 

While  disclaiming  any  disposition  to  exclude  matter 
merely  because  it  was  obnoxious  to  some  special  interest, 
Blair  did  insist  that  a  course  of  precedents  had  existed 
in  his  department  for  twenty-five  years,  "known  to  Con- 
gress, not  annulled  or  restrained  by  act  of  Congress,  in 
accordance  with  which  newspapers  and  other  printed 
matter,  decided  by  postal  officers  to  be  insurrectionary, 
or  treasonable,  or  in  any  degree  inciting  to  treason  or 
insurrection,  have  been  excluded  from  the  mails  and 
post  offices  of  the  United  States  solely  by  the  authority 
of  the  executive  administration."  With  this  policy  the 
Judiciary  Committee  concurred,  and  the  investigation 
was  carried  no  further.*^ 


VII 

One  of  the  measures  occasionally  used  was  the  arbi- 
trary arrest  of  offending  editors.  When,  for  instance,  a 
marshal  of  one  of  the  Federal  district  courts  in  New  York 
wrote  to  Secretary  Seward  early  in  the  war  describing  a 
certain  paper  as  a  secession  sheet  and  asking  what  should 

** Concerning  measures  taken  by  the  postal  authorities,  see  further: 
O.  R.,  Ser.  II,  Vol.  2,  pp.  70,  82,  162,  179,  283,  495,  496,  501 
940;  N.  Y.  World,  Aug.  2,  8,  15  and  18,  1864;  Sen.  Exec.  Doc.  No.  19, 
37  Cong.,  3  sess.;  Diary  of  Gideon  Welles,  index  under  "Mails." 


THE  GOVERNMENT  AND  THE  PRESS    503 

be  done,  Seward  directed  the  marshal  to  arrest  the  editor 
and  send  him  to  Fort  Lafayette.*^  Here  was  an  example 
of  a  military  imprisonment  to  be  executed  by  an  officer 
of  a  civil  court  upon  the  order  of  a  minister  of  foreign 
affairs!  After  the  War  Department  took  over  the  matter 
of  arrests,  the  policy  toward  journalists  remained  much 
the  same.  Secretary  Stanton,  in  February,  1862,  sent  an 
order  to  officers  in  various  important  cities  in  these 
terms:  "All  newspaper  editors  and  publishers  have  been 
forbidden  to  publish  any  intelhgence  received  by  tele- 
graph or  otheruase  respecting  military  operations  by  the 
United  States  forces.  Please  see  .  .  .  that  this  order  is 
observed.  If  violated,  .  .  .  seize  the  whole  edition  and 
give  notice  to  this  department,  that  arrests  may  be  or- 
dered." ^^  Though  the  military  information  constantly 
appearing  in  the  papers  leads  us  to  conclude  that  this 
order  was  not  generally  enforced,  yet  it  shows  that  the 
adminstration  regarded  the  military  arrest  of  Northern 
editors  as  a  legitimate  measure  for  the  control  of  jour- 
nalistic abuses. 

The  exercise  of  this  form  of  newspaper  control,  how- 
ever, was  usually  unfortunate.  The  more  prominent  the 
editor,  the  greater  was  the  newspaper's  gain  in  prestige 
in  the  eyes  of  its  readers  and  sympathizers  because  of  the 
martyr's  pose  which  the  editor  invariably  assumed. 
When,  for  example,  F.  Key  Howard,  editor  of  the  Balti- 
more Exchange,  was  arrested  and  confined  in  Fort  Lafay- 
ette and  elsewhere,  he  sent  a  vigorous  letter  to  the 
Secretary  of  War  demanding  instant  and  unconditional 
release.'*®  He  stood  his  ground  heroically  and  demanded, 
not  pardon,  but  vindication.    He  refused  to  appear  before 

**0.  R.,  Ser.  II,  Vol.  2,  pp.  66,  68.     The   order  was  subsequently 
countermanded, 
"/bid.,  p.  246. 
""Ibid.,  pp.  783-786. 


504  THE  CONSTITUTION  UNDER  LINCOLN 

an  "irresponsible  tribunal,"  and  would  not  seal  his  lips  to 
obtain  discharge.  The  paper  continued  publication  for  a 
time  while  its  editor  and  proprietor  were  in  prison,  and 
the  net  result  was  simply  to  afford  this  journal  a  more 
conspicuous  rostrum  from  which  to  hurl  its  anathemas 
against  the  Government.  On  the  morrow  of  Howard's 
arrest  the  Exchange  declared  in  an  indignant  editorial 
that  the  unrestricted  right  of  the  press  to  discuss 
and  condemn  the  war  policy  of  the  Government  is 
identical  with  the  freedom  of  the  people  to  do  the  same 
thing,'*'^  and  thus  the  trumpet  blasts  for  journalistic  free- 
dom were  added  to  the  general  chorus  of  anti-war  senti- 
ment. After  an  imprisonment  of  several  months,  Howard 
and  his  associate  Glenn  were  released. ^^ 

In  general  it  may  be  said  that  where  editors  or  pro- 
prietors of  papers  were  confined  as  "prisoners  of  state," 
this  action  was  taken  because  the  authorities  had  some 
reason  to  suppose  them  disloyal  and  that  after  short 
periods  of  confinement  they  were  released  just  as  arbi- 
trarily as  they  were  arrested.  In  its  legal  aspects  this 
phase  of  the  subject  differs  not  at  all  from  the  general 
question  of  arbitrary  arrest  and  imprisonment  which  we 
have  previously  discussed. 

Action  of  the  civil  courts  for  dealing  with  newspaper 
abuses  (by  prosecutions  for  obstructing  the  draft,  con- 
spiracy, and  the  like)  yielded  no  results.  Grand  juries 
did  occasionally  bring  indictments  against  editors,  but 
no  case  of  this  sort  was  carried  through  to  conviction. 
For  resisting  the  draft,  John  Mullaly,  editor  and  pro- 
prietor of  the  Metropolitan  Record,  New  York,  was 
prosecuted  under  the  act  of  February  29,  1S64,  but  he 
was  discharged  on  the  ground  that  the  draft  had  not 


Editorial,  Baltimore  Exchange,  Sept.  13,  1861. 
0.  R.,  Ser.  II,  Vol.  2,  pp.  778,  786,  793,  795. 


THE  GOVERNMENT  AND  THE  PRESS     505 

gone  into  actual  operation  at  the  time  when  his  utter- 
ances were  printed/''  In  announcing  his  opinion,  United 
States  Commissioner  Osborn  upheld  the  right  of  citizens 
to  criticize  governmental  measures.  As  we  have  ob- 
served elsewhere,  a  variety  of  conditions  operated  to 
inhibit  effective  prosecutions  for  disloyalty,  and  these 
conditions  applied  with  particular  force  in  the  case  of 
newspapers. 

VIII 

In  seeking  a  just  interpretation  of  the  question  of 
press  control  during  the  Civil  War,  one  must  balance  the 
immediate  and  practical  considerations,  of  which  the 
executive  branch  must  be  ever  watchful,  with  the  con- 
stitutional and  legal  phases  of  the  subject.  When  power- 
ful papers  were  upsetting  strategy  by  the  revelation  of 
military  secrets,  discrediting  the  Government,  defaming 
the  generals,  weakening  the  morale  of  soldier  and  citizen, 
uttering  disloyal  sentiments,  fomenting  jealous  antago- 
nism among  officers,  and  clamoring  for  a  peace  which 
would  have  meant  the  consummation  of  disunion,  even 
the  most  patient  administration,  charged  with  the  pres- 
ervation of  the  Union  by  war,  would  have  been  tempted 
to  the  use  of  vigorous  measures  of  suppression.  Yet  in 
face  of  this  strong  provocation  there  stood  the  citizen's 
fundamental  right  of  a  free  press.  Though  for  every 
wrong  there  should  be  some  remedy,  it  seemed  that  our 
Constitution  and  laws  lacked  a  specific  legal  remedy  for 
journalistic  wrongs  against  the  Government.  The  urg- 
ings  of  the  war  mind  and  the  demands  of  military  men 
tended  to  pull  the  Government  in  the  direction  of  arbi- 
trary measures,  while  that  deeper  sense  of  regard  for  law 
was  at  the  same  time  operating  as  a  powerful  restraining 

*  New  York  World,  Aug.  29,  1864. 


506  THE  CONSTITUTION  UNDER  LINCOLN 

force.  In  a  Cabinet  containing  both  Lincoln  and  Stan- 
ton, the  conflict  of  these  opposite  tendencies  must  neces- 
sarily have  been  intense.  Such  a  struggle  always  occurs 
in  war  time,  and  the  conditions  peculiar  to  the  war  for 
the  Union  intensified  the  struggle  to  an  unusual  degree. 
At  times,  when  the  public  danger  seemed  really  threat- 
ened, or  the  provocation  became  too  great,  acts  of  ques- 
tionable legality  such  as  the  suppression  of  papers  or  the 
arrest  of  editors  were  resorted  to.  Opinions  will  differ  as 
to  whether  such  acts  w^ere  justifiable,  and  support  will 
be  found  by  skillful  advocates  for  either  view.  Great 
pubhc  questions  are  more  than  legal  questions,  and  those 
will  be  found  who  justify  the  act  while  admitting  the 
illegality. 

Those  military  measures  of  control  which  were  well 
within  the  military  code  and  were  taken  for  military 
objects,  would  occasion  the  least  condemnation.  The 
subjection  of  news-writers  accompanying  the  army  to 
military  discipline,  the  denial  of  confidential  informa- 
tion to  correspondents,  the  censoring  of  their  dispatches 
at  headquarters  for  military  objects,  the  punishment  by 
court-martial  of  such  correspondents  as  conveyed  useful 
intelligence  to  the  enemy — such  measures  as  these  could 
hardly  be  questioned  on  the  ground  of  illegality.  That 
part  of  the  military  code  which  severely  prohibits  com- 
munication with  the  enemy  is,  like  the  rest  of  the  code, 
an  act  of  Congress  passed  in  accordance  w'ith  the  consti- 
tutional right  of  that  body  to  "make  rules  for  the  gov- 
ernment ...  of  the  land  and  naval  forces,"  and  this 
code  has  never  been  seriously  regarded  as  inconsistent 
with  the  First  Amendment.  The  striking  fact  about  this 
part  of  the  military  code  is  that  it  was  used  so  little  and 
that  journalists  were  dealt  with  so  leniently.  In  no  case 
was  the  extreme  penalty,  death,  enforced  against  a  cor- 
respondent for  giving  intelligence  to  the  enemy,  though 


THE  GOVERNMENT  AND  THE  PRESS     507 

many  did  so ;  and  the  trial  of  these  men  by  court-martial 
was,  as  we  have  seen,  extremely  rare.  Usually  their  pun- 
ishment was  merely  exclusion  from  the  lines  of  a  military 
command. 

The  larger  question  of  the  war  power  over  the  press, 
however,  is  not  concerned  with  measures  coming  within 
the  military  code,  but  rather  with  the  extension  of  mili- 
tary rule  into  the  sphere  appropriate  to  the  civil  law. 
The  most  plausible  legal  justification  for  the  summary 
suppression  of  a  newspaper  directed  to  the  legal  merits 
of  the  question,  would  seem  to  be  the  doctrine  that  under 
martial  law  military  rule  temporarily  supplants  the  ordi- 
nary law ;  but  the  establishment  of  martial  law  in  peace- 
ful districts  remote  from  actual  military  operations  is  to 
say  the  least  a  questionable  practice,  and  the  leading 
instances  of  newspaper  suppression  occurred  where  no 
martial  law  had  been  proclaimed.  Though  the  Supreme 
Court  has  issued  no  opinion  which  covers  specifically 
this  question  of  newspaper  suppression  as  a  war  measure, 
yet  the  underlying  principle  of  the  Milligan  case,^°  dis- 
countenancing the  extension  of  military  jurisdiction  into 
regions  within  the  control  of  the  civil  authorities,  would 
seem  to  apply  to  the  military  seizure  of  a  newspaper  as 
well  as  to  the  military  trial  of  a  citizen.  Cases  such  as 
those  of  the  New  York  World  and  the  Chicago  Times, 
which  we  have  considered  in  this  chapter,  though  some- 
what relieved  by  the  prompt  restoration  of  the  papers 
and  the  release  of  those  imprisoned,  will  doubtless  be 
remembered  as  unfortunate  instances  of  the  exercise  of 
military  power  in  a  sphere  where  the  supremacy  of  the 
civil  authorities  should  have  been  conceded. 

It  would  be  a  mistake,  however,  to  dwell  upon  the 
various  instances  of  suppression  without  balancing  them 

•"Supra,  pp.  179-183. 


508  THE  CONSTITUTION  UNDER  LINCOLN 

against  the  far  greater  number  of  instances  in  which  the 
temptation  to  drastic  action  was  resisted.  Despite  par- 
ticular occasions  of  harsh  treatment,  the  prevaihng  pohcy 
was  one  of  tolerance  and  leniency.  As  we  have  already 
observed,  no  true  newspaper  censorship  existed  during 
the  war.  The  military  control  of  the  telegraph  and  the 
quite  ineffective  supervision  of  correspondents'  dispatches 
had  none  of  the  characteristics  of  a  real  censorship.  It 
is  a  significant  fact  that  the  word  "censorship"  does  not 
occur  in  the  index  to  the  Government  documents  for  the 
Civil  War  period,  nor  in  the  index  of  the  Congressional 
Globe,  nor  in  the  general  index  of  the  Official  Records  of 
the  war.  Despite  great  provocation  there  was  no  Espio- 
nage Act  and  no  Sedition  Act  during  the  Lincoln  admin- 
istration."^ During  a  time  when  disloyalty  was  wide- 
spread and  defiant,  the  anti-Lincoln  and  anti-Union  or- 
gans were,  as  a  rule,  left  undisturbed;  and  the  continuous 
stream  of  abuse  which  the  opposition  papers  emitted  was 
in  itself  a  standing  evidence  of  the  fact  that  liberty  of  the 
press,  even  to  the  point  of  license,  did  exist. 

Lincoln's  view  as  to  the  appropriate  course  to  be  taken 
toward  newspapers  was  expressed  as  follows  in  a  letter 
to  General  Schofield:  "You  will  only  arrest  individuals 
and  suppress  assemblies  or  newspapers  when  they  may 
be  working  palpable  injury  to  the  military  in  your 
charge,  and  in  no  other  case  will  you  interfere  with  the 
expression  of  opinion  in  any  form  or  allow  it  to  be  inter- 
fered with  violently  by  others.  In  this  you  have  a  dis- 
cretion to  exercise  with  great  caution,  calmness  and  for- 
bearance." ^^ 


"  "We  fought  the  Civil  War  with  the  enemy  at  our  gates  and  pow- 
erful secret  societies  in  our  midst  without  an  Espionage  Act."  (Qiafee, 
Freedom  of  Speech,  116.)  Chafec  goes  on  to  comment  upon  Lincoln's 
caution  with  regard  to  freedom  of  the  press. 

"Nicolay  and  Hay,  Works,  IX,  148. 


THE  GOVERNMENT  AND  THE  PRESS     509 

In  applying  this  policy  of  forbearance  the  President 
was  compelled  to  disappoint  many  zealously  loyal  citi- 
zens who,  while  their  sons  were  fighting  for  the  Union, 
could  not  bear  to  see  disloyal  editors  remain  unmolested 
in  furnishing  a  form  of  aid  to  the  enemy  which  was 
more  potent  than  rifles.  Such  feelings  prompted  many 
mass  meetings  and  caused  many  letters  and  petitions  to 
be  sent  to  Washington  urging  that  the  publication  of 
"Copperhead"  papers  be  prohibited.  Often  popular  in- 
dignation vented  itself  in  mob  action  against  obnoxious 
papers,  resulting  in  the  destruction  of  the  newspaper 
offices,  attacks  or  worrying  threats  directed  against  edi- 
tors, and  similar  disturbances.'^^  Under  such  conditions 
military  seizure  might  be  a  protection  to  the  newspaper 
as  well  as  a  means  of  preserving  the  public  peace. 

Where  this  popular  opinion  was  operative,  however, 
the  Government  could  well  afford  to  refrain  from  drastic 
measures.  Ignoring  the  papers,  allowing  them  to  "strut 
their  uneasy  hour  and  be  forgotten"  (as  President  Wilson 
expressed  it),^"*  was  often  the  most  effective  course,  espe- 


"A  mob  at  Chester,  Illinois,  destroyed  the  ofRce  of  the  Picket  Guard 
in  July,  1864.  The  Bridgeport  (Conn.)  Farmer  was  attacked  by  a 
mob  of  five  hundred  and  its  office  demolished  because  it  "favored  the 
rights  of  the  South."  In  complaining  of  a  disloyal  editor,  Charles 
Fishback  of  Indianapolis  wrote  as  follows  to  Seward:  "The  people 
are  getting  tired  of  sending  their  sons  to  fight  the  rebels  while  such 
as  this  editor,  more  mischievous  by  far  than  if  armed  with  muskets, 
are  allowed  to  furnish  aid  and  comfort  to  the  enemy  unmolested." 
In  Ohio  the  Gazette  and  Citizen  at  St.  Clairsville,  the  Gazette  at 
Bellefontaine,  the  Iron  Valley  Express  published  at  Jackson  Court 
House,  the  Dayton  Empire,  the  Marion  Mirror,  the  Columbus  Crisis, 
the  Lancaster  Eagle,  the  Starke  County  Democrat,  the  Wauseon 
Democrat,  and  the  Mahoning  Sentinel  (of  Youngstown)  were  affected 
by  mob  disturbances.  These  are  but  a  few  of  many  instances  that 
could  be  mentioned  to  indicate  the  intensity  of  popular  feeling  against 
journals  that  were  regarded  as  disloyal.  (Cairo  [111.]  Daily  Dem,ocrat, 
July  30,  1864;  O.  R.,  Ser.  II,  Vol.  2,  pp.  377,  806;  Ann.  Cyc,  1864, 
p.  393;  New  York  Tribune,  Aug.  24,  1861,  p.  4.) 

"  Speech  of  President  Wilson  before  Congress,  Dec.  4,  1917. 


510  THE  CONSTITUTION  UNDER  LINCOLN 

cially  in  the  case  of  those  journals  whose  very  abusive- 
ness  caused  them  to  forfeit  pubHc  respect.  Where,  on 
the  other  hand,  there  existed  a  sohd  basis  of  popular 
sympathy  for  a  newspaper,  oppressive  action  would  but 
strengthen  this  sentiment  and  weaken  the  administra- 
tion. It  is  the  old  story  of  the  inability  of  government 
to  coerce  or  supplant  opinion. 


CHAPTER  XX 

SUMMAKY    AND    CONCLUSION 

I.   American  and  English  attitude  toward  the  rule  of  law 
II.   Lincoln's   interpretation   and   application  of  the   war 
power 

III.  Lack  of  legal  precision  during  the  Civil  War:    Con- 

flicting theories  as  to  its  nature 

IV.  Absence  of  effective  checks  by  Congress  and  the  Su- 

preme Court 
V.   Mitigating  factors :   General  appraisal  of  Lincoln's  gov- 
ernment 
VI.   Bearing  of  Civil  War  issues  upon  later  constitutional 
history:    Parallel  problems  under  Wilson 

Specific  problems  have  been  the  burden  of  the  pre- 
ceding pages;  but  as  one  takes  a  broad  view  of  the  con- 
stitutional aspects  of  the  Civil  War  there  are  certain  out- 
standing considerations  which  emerge  from  the  details 
and  which,  in  turn,  illuminate  the  details  themselves. 
Brief  comment  on  some  of  these  considerations  may  serve 
as  a  conclusion  to  our  study. 


Though  no  one  expects  government  in  war  time  to  be 
normal,  yet  in  studying  any  government  it  is  useful  to 
have  in  mind  some  norm  or  standard  in  comparison  with 
which  it  may  be  judged.  One  finds  such  a  norm  in  the 
principle  of  the  "rule  of  law"  which  has  been  made 
familiar  to  English  and  American  readers  through  Pro- 
fessor Dicey's  Law  of  the  Constitution.  It  will  be  worth 
while  to  recall  what  this  principle  involves  in  order  to 

511 


512  THE  CONSTITUTION  UNDER  LINCOLN 

have  it  in  view  while  commenting  on  governmental  prac- 
tice under  Lincoln's  presidency.  In  England,  as  Pro- 
fessor Dicey  shows,  the  "rule  of  law"  means  that  every 
man's  legal  rights  or  liabilities  are  almost  invariably  de- 
termined by  the  ordinary  courts;  that  executive  ofl&cers 
have  a  more  limited  discretion  and  less  arbitrary  power 
than  in  other  European  countries;  and  that  no  man  is 
above  the  law,  but  all  are  amenable  to  the  jurisdiction 
of  the  ordinary  tribunals,  officers  being  personally  hable 
for  wrongs  done,  even  though  in  an  official  capacity. 
He  adds  that  personal  rights  in  England  do  not  derive 
from  a  constitution  but  inherently  exist.^ 

American  political  philosophy  is  in  accord  with  this 
principle.  Our  ideal,  it  has  been  said,  is  a  "government 
of  laws,  not  of  men."  Law  is  above  government:  gov- 
ernment is  under  law.  Martial  law,  while  sometimes 
used  in  this  country,  is  viewed  with  distrust  and  is  re- 
garded as  abnormal.  We  think  of  it  as  the  setting  aside 
of  law,  not  as  its  fulfillment.  The  military  power  we 
believe  to  be  subordinate  to  the  civil;  and  even  amid 
serious  disturbances  we  have  preferred  to  rely  upon  civil 
procedure.  There  is  in  this  country  a  deplorable  disre- 
gard for  law  as  it  restrains  individuals;  but  this  is  en- 
tirely consistent  with  that  other  disposition  to  subject 
our  rulers  to  legal  restraints.  Our  respect  for  the  Su- 
preme Court  is  typical  of  our  attitude  in  this  matter. 

Nor  is  it  comfoniiable  to  American  political  philoso- 
phy to  hold  that  during  war  legal  restraints  are  to  be 
ignored.  The  maxim  "necessity  knows  no  law"  appears 
to  the  American  legal  genius  as  a  half-truth  rather 
than  a  fundamental  or  central  principle.  Too  often  the 
maxim  is  a  mere  excuse.  Unrestrained  military  power 
even  in  war  is  repugnant  to  the  American  mind.    Inter- 

*A.  V.  Dicey,  Introduction  to  the  Law  of  the  Constitution,  Ch.  iv. 


SUMMARY  AND  CONCLUSION  513 

national  law  (which  includes  the  "laws  of  civilized  war- 
fare"), treaty  obligations,  and  at  least  a  proximate  pres- 
ervation of  civil  rights  (not  ignoring  those  of  an  enemy 
population  under  military  occupation)  are  factors  which 
should  restrain  any  warring  government.  The  view  that 
prevails  in  America  is  that  even  amid  arms  the  laws 
hold;  and  one  of  the  great  doctrines  of  the  Supreme 
Court,  as  announced  in  the  Milligan  case,  is  that  the 
Constitution  is  not  suspended  during  war. 

This  conception  of  a  reign  of  law  is,  of  course,  but  an 
ideal.  We  believe  that  the  settled,  permanent  will  of  the 
whole  community,  as  expressed  in  fundamental  law,  is 
a  great  stabilizing  force ;  and  in  the  ordering  of  our  po- 
litical life  we  believe  that  every  effort  should  be  made 
to  give  superior  force  to  our  mature,  sober  judgment  as 
against  the  designs  of  our  rulers. 

The  ideal  is  never  realized,  but  such  is  the  manner  of 
ideals.  Though  in  a  sense  we  always  live  under  a  gov- 
ernment of  men,  yet  the  rule  of  law  as  a  standard  has 
its  definite  value  none  the  less. 


n 

When  the  Government  under  Lincoln  is  set  over 
against  this  standard,  its  irregular  and  extra-legal  char- 
acteristics become  conspicuous.  It  is  indeed  a  striking 
fact  that  Lincoln,  who  stands  forth  in  popular  concep- 
tion as  the  great  democrat,  the  exponent  of  liberty  and 
of  government  by  the  people,  was  driven  by  circum- 
stances to  the  use  of  more  arbitrary  power  than  perhaps 
any  other  President  has  seized.  Probably  no  President, 
not  even  Wilson,  carried  the  power  of  presidential  procla- 
mation and  of  executive  order  so  far  as  did  Lincoln.  It 
would  not  be  easy  to  state  what  Lincohi  conceived  to  be 


514  THE  CONSTITUTION  UNDER  LINCOLN 

the  limit  of  his  powers.  He  carried  his  executive  au- 
thority to  the  extent  of  freeing  the  slaves  by  proclama- 
tion, setting  up  a  whole  scheme  of  state-making  for  the 
purpose  of  reconstruction,  suspending  the  habeas  corpus 
privilege,  proclaiming  martial  law,  enlarging  the  army 
and  navy  beyond  the  limits  fixed  by  existing  law,  and 
spending  public  money  without  congressional  appro- 
priation. Some  of  his  important  measures  were  taken 
under  the  consciousness  that  they  belonged  within  the 
domain  of  Congress.  The  national  legislature  was  merely 
permitted  to  ratify  these  measures,  or  else  to  adopt  the 
futile  alternative  of  refusing  consent  to  an  accomplished 
fact.  We  have  seen  how  the  first  national  use  of  con- 
scription, in  connection  with  the  Militia  Act  of  1862,  was 
an  instance  of  presidential  legislation.  We  have  also 
noted  the  exercise  of  judicial  functions  by  Lincoln  or 
those  acting  under  his  authority,  in  regions  under  mar- 
tial law,  in  Southern  territory  under  Union  occupation, 
in  the  application  of  military  justice,  in  the  performance 
of  quasi-judicial  functions  by  executive  departments,  and 
in  the  creation  of  "special  war  courts"  such  as  the  "pro- 
visional court  of  Louisiana."  It  thus  appears  that  the 
President,  while  greatly  enlarging  his  executive  powers, 
seized  also  legislative  and  judicial  functions  as  well. 

Lincoln's  view  of  the  war  power  is  significant.  He 
believed  that  rights  of  war  were  vested  in  the  President, 
and  that  as  President  he  had  extraordinary  legal  re- 
sources which  Congress  lacked.  For  example,  he  pro- 
mulgated the  "laws  of  war"  to  regulate  the  conduct  of 
the  armies;  and  in  vetoing  the  Wade-Davis  bill  of  1864 
he  questioned  the  constitutional  competency  of  Con- 
gress to  abolish  slavery  in  the  States  at  a  time  when  his 
own  edict  of  emancipation  had  been  in  force  for  eighteen 
months.  Lincoln  tended  to  the  view  that  in  war  the 
Constitution  restrains  Congress  more  than  it  restrains 


SUMMARY  AND  CONCLUSION  515 

the  President.  Yet  the  view  of  the  Supreme  Court  was 
that  Congress  may  exercise  belligerent  powers  and  that 
in  the  use  of  these  powers  over  the  enemy  the  restraints 
of  the  Constitution  do  not  apply.-  Lincoln's  view, 
under  pressure  of  severe  circumstance,  led  naturally  to 
that  course  which  has  been  referred  to  as  his  "dictator- 
ship"; and,  as  illustrated  in  the  Prize  Cases,  it  pro- 
duced uncertainty  as  to  the  legality  of  the  war.  Though 
the  validity  of  Lincoln's  acts  was  sustained  by  a  majority 
of  the  court — ^which  could  hardly  have  decided  other- 
wise on  so  vital  a  political  question — ^yet  four  dissent- 
ing judges  held  that  the  President's  action  alone  was 
not  sufficient  to  institute  a  legal  state  of  war.  Lincoln's 
plea  in  defense,  to  the  effect  that  his  acts  within  the 
legislative  domain  could  be  legalized  by  congressional 
ratification,  could  hardly  be  accepted  as  consistent  with 
the  constitutional  separation  of  powers;  and  this  whole 
phase  of  the  President's  conduct  illustrates  not  so  much 
a  permanently  acceptable  principle,  but  rather  Lincoln's 
ability  to  retain  popular  confidence  while  doing  irregu- 
lar things.  When,  however,  the  peculiar  qualities  of  a 
President's  personality  enable  him  to  act  in  an  extra- 
legal manner,  we  have  an  illustration  of  personal  rule 
rather  than  the  rule  of  law. 


in 

In  all  this  extension  of  governmental  power  there  was 
a  noticeable  lack  of  legal  precision.  A  tendency  toward 
irregularity  may  be  observed  as  a  characteristic  of  the 

'Miller  vs.  U.  S,  78  U.  S.  268.  This  should  be  distinguished  from 
the  doctrine  of  the  Milligan  case  that  as  to  the  nation's  own  citizens 
the  restraints  of  the  Constitution  do  apply  in  war;  but  the  difficulty 
of  preserving  such  a  distinction  during  the  Civil  War,  with  its  double 
theory  as  to  the  status  of  those  adhering  to  the  Confederacy,  ig 
obvious. 


516   THE  CONSTITUTION  UNDER  LINCOLN 

period,  in  military  and  civil  administration,  in  legisla- 
tion, and  in  legal  interpretation.  Congress  did  its  work 
loosely  and  various  of  its  laws  were  never  carried  out; 
while  others  produced  bewilderment  in  the  officers  who 
sought  to  apply  them.  The  Southern  States  were  taxed 
as  if  part  of  the  United  States;  yet  the  property  out 
of  which  such  tax  must  be  paid  was  declared  confiscable 
as  belonging  to  enemies.  The  Unionist  government  of 
Virginia  was  considered  competent  to  authorize  the  dis- 
ruption of  the  State;  but  later  this  same  government 
(removed  from  Wheeling  to  Alexandria)  was  denied  rep- 
resentation in  Congress  and  rejected  as  the  instrument 
of  reconstruction.  Eight  States  of  the  former  Confed- 
eracy, after  assisting  in  ratifying  the  anti-slavery  amend- 
ment of  the  Constitution,  were  treated  as  outside  the 
Union,  Legal  interpretation  in  the  'sixties  often 
smacked  of  sophistry — so  much  so  that  to  many  men 
an  open  confession  of  unconstitutionality  appeared  pref- 
erable to  the  labored  reasoning  that  was  all  too  common. 
Much  of  the  legal  inconsistency  arose  from  confusion 
as  to  what  the  war  was,  whether  it  was  extramural  or 
within  the  family.  Was  the  Government  facing  some- 
thing like  a  magnified  Whiskey  Insurrection,  or  was  it 
dealing  with  war  in  the  international  sense?  Confronted 
with  this  dilemma,  the  Supreme  Court  adopted  the  con- 
venient, if  illogical,  course  of  accepting  both  alterna- 
tives.^ 

The  conflict  was  defined  as  both  a  public  war  and  a 
rebellion,  with  the  result  that  in  Southern  territory 
the  United  States  claimed  both  belligerent  and  munici- 
pal powers.  Many  bootless  and  mystifying  discussions 
resulted  from  this  acceptance  of  two  inconsistent  view- 
points. 

'Supra,  Chapter  III, 


SUMMARY  AND  CONCLUSION  517 

Yet  there  was  nothing  more  natural  than  that  these 
two  opposite  theories  of  the  war  should  both  be  adopted. 
As  to  the  insurrectionary  theory,  its  adoption  resulted 
from  the  Government's  unwillingness  to  accept  disunion 
as  justified  and  to  give  up  Federal  sovereignty  in  the 
South;  while  the  recognition  of  the  struggle  as  a  pub- 
lic war  arose  from  the  practical  necessity  of  dealing 
with  a  nation  in  arms  as  a  regular  belligerent.  The  ex- 
istence side  by  side  of  two  opposing  legal  principles  is 
understandable  if  we  remember  that  the  insurrection- 
ary theory  was  not  in  fact  applied  as  against  Southern 
leaders  and  their  adherents.  They  were  not  held  person- 
ally liable  as  insurrectionists  as  were  the  leaders  of  the 
Whiskey  Insurrection ;  but  the  Confederacy  was  in  prac- 
tice treated  as  a  government  with  belligerent  powers. 


IV 

If  we  were  to  ask  how  far  our  usual  constitutional 
checks  operated  during  the  Civil  War  to  prevent  an  ex- 
treme use  of  power,  we  would  find  that  neither  Congress 
nor  the  Supreme  Court  exercised  any  very  effective  re- 
straint upon  the  President.  Congress  specifically  ap- 
proved the  President's  course  between  April  and  July, 
1861;  and,  as  to  the  habeas  corpus  question,  after  two 
years'  delay,  Congress  passed  an  ambiguous  law  which 
was  at  the  same  time  interpreted  as  approving  and  dis- 
approving the  doctrine  that  the  President  has  the  sus- 
pending power.  The  net  effect,  however,  was  to  support 
the  President;  and  immunity  from  prosecution  was 
granted  to  officers  who  committed  wrongs  during  the 
suspension.^  It  is  true  that  the  Habeas  Corpus  Act  of 
1863  directed  the  release  of  prisoners  unless  indicted  in 

*  Supra,  Chapter  IX. 


518  THE  CONSTITUTION  UNDER  LINCOLN 

the  courts.  This  was  equivalent  to  saying  that  the 
President's  suspension  of  the  privilege,  which  was  au- 
thorized by  this  act,  was  to  be  effective  in  any  judicial 
district  only  until  a  grand  jury  should  meet.  On  paper 
this  law  radically  altered  the  whole  system  regarding 
political  prisoners,  making  arbitrary  imprisonment  il- 
legal after  grand  juries  had  examined  the  prisoners' 
cases.  The  significant  fact,  however,  is  that  the  law  was 
ineffective.  It  did  not,  in  fact,  put  an  end  to  extra-legal 
imprisonments;  nor  did  it  succeed  in  shifting  the  con- 
trol of  punishments  from  executive  and  military  hands 
to  judicial  hands. 

As  to  the  courts,  a  careful  study  will  show  that  they 
did  not  function  in  such  a  way  as  to  control  the  emer- 
gency. In  dealing  with  disloyal  practices  the  courts 
played  a  passive  rather  than  an  active  role.  They  dealt 
in  a  hesitating  way  with  cases  that  were  brought  to 
them;  but  the  President,  through  the  Attorney  General 
and  the  district  attorneys,  controlled  the  prosecutions, 
and  where  it  appeared  that  treason  indictments  were 
being  pushed  toward  conviction,  the  administration  at 
"Washington  showed  actual  embarrassment  at  the  Govern- 
ment's success.  Its  way  of  dealing  with  dangerous 
citizens  was  not  by  prosecution  in  the  courts,  but  by 
arbitrary  imprisonment,  followed  by  arbitrary  release. 
The  terrors  of  the  old  treason  law  proving  unsuitable  to 
the  emergency,  its  penalty  was  softened;  but  even  the 
softened  penalty  was  not  enforced.  There  is  a  striking 
contrast  between  the  great  number  of  arbitrary  arrests 
and  the  almost  negligible  amount  of  completed  judicial 
action  for  treason,  conspiracy,  and  obstructing  the  draft. 
It  was  widely  argued  that  the  courts  could  not  deal  with 
the  emergency,  and  that  this  inability  justified  an  ex- 
traordinary extension  of  military  power. 

The  Supreme  Court  of  the  United  States  did  not,  dur- 


SUMMARY  AND  CONCLUSION  519 

ing  the  war,  exert  any  serious  check  upon  either  Con- 
gress or  the  President.  In  the  Prize  Cases,  the  court 
approved  Lincoln's  acts  in  the  early  months  of  the  war. 
Such  an  extreme  measure  as  confiscation  was  upheld  by 
the  court,  though  its  validity,  both  in  the  international 
and  the  constitutional  sense,  was  seriously  questioned. 
It  was  not  the  Supreme  Court,  but  Chief  Justice  Taney, 
hearing  the  Merryman  petition  in  chambers,  who  de- 
nounced the  President's  suspension  of  the  habeas  corpus 
privilege.  After  the  war,  it  is  true,  the  court,  in  the 
Milhgan  case,  declared  a  military  regime  illegal  in  re- 
gions remote  from  the  theater  of  war;  but  while  the 
war  was  in  progress  the  court  had  declined  to  interfere 
with  the  action  of  a  military  commission  in  a  similar 
case,  that  of  Vallandigham.  On  the  whole  it  appears 
that,  while  extreme  measures  were  being  taken,  neither 
Congress  nor  the  courts  exerted  any  effective  restraint. 
Instead  of  the  "rule  of  law"  prevailing,  as  Dicey  defined 
it,  men  were  imprisoned  outside  the  law  and  independ- 
ently of  the  courts;  and  governmental  officers  were  given 
a  privileged  place  above  the  law  and  made  immune  from 
penalties  for  wrongs  committed. 


This  is  one  side  of  the  picture.  There  is,  however, 
another  side;  and  we  must  note  certain  factors  which 
at  least  partly  redeemed  the  situation.  The  greatest 
factor,  perhaps,  was  the  legal-mindedness  of  the  Ameri- 
can people;  and  a  very  great  factor  was  Lincoln  him- 
self. His  humane  sympathy,  his  humor,  his  lawyerlike 
caution,  his  common  sense,  his  fairness  toward  op- 
ponents, his  dislike  of  arbitrary  rule,  his  willingness  to 
take  the  people  into  his  confidence  and  to  set  forth 
patiently  the  reasons  for  unusual  measures — all  these  ele- 


520   THE  CONSTITUTION  UNDER  LINCOLN 

ments  of  his  character  operated  to  modify  and  soften 
the  acts  of  overzealous  subordinates  and  to  lessen  the 
effect  of  harsh  measures  upon  individuals.  He  was  criti- 
cized for  leniency  as  often  as  for  severity.  Though 
there  were  arbitrary  arrests  under  Lincoln,  there  was 
no  thoroughgoing  arbitrary  government.  The  Govern- 
ment smarted  under  great  abuse  without  passing  either 
an  Espionage  Act  or  a  Sedition  Law.  Freedom  of  speech 
was  preserved  to  the  point  of  permitting  the  most  dis- 
loyal utterances.  While  a  book  could  be  written  on 
the  suppression  of  certain  newspapers,  the  military  con- 
trol of  the  telegraph,  the  seizure  of  particular  editions, 
the  withholding  of  papers  from  the  mails,  and  the  ar- 
rest of  editors;  yet  in  a  broad  view  of  the  whole  situa- 
tion such  measures  appear  so  far  from  typical  that  they 
sink  into  comparative  insignificance.  There  was  no 
real  censorship,  and  in  the  broad  sense  the  press  was 
unhampered  though  engaging  in  activities  distinctly 
harmful  to  the  Government.  As  to  Lincoln's  attitude 
in  this  matter,  it  should  be  remembered  that  in  gen- 
eral he  advised  non-interference  with  the  press,  and 
that  he  applied  this  pohcy  prominently  in  the  case  of 
the  Chicago  Times. 

To  suppose  that  Lincoln's  suspension  of  the  habeas 
corpus  privilege  set  aside  all  law  would  be  erroneous. 
The  suspension  was  indeed  a  serious  matter;  but  men 
were  simply  arrested  on  suspicion,  detained  for  a  while, 
and  then  released.  The  whole  effect  of  their  treatment 
was  milder  than  if  they  had  been  punished  through  the 
ordinary  processes  of  justice.  As  to  the  military  trial 
of  civilians,  it  should  be  noticed  that  the  typical  use 
of  the  military  commission  was  legitimate;  for  these 
commissions  were  commonly  used  to  try  citizens  in  mili- 
tary areas  for  military  crimes.  Where  citizens  in  prox- 
imity to  the  Union  army  were  engaged  in  sniping  or 


SUMMARY  AND  CONCLUSION  521 

bushwhacking,  in  bridge  burning  or  the  destruction  of 
raih-oad  or  telegraph  lines,  they  were  trifed,  as  they 
should  have  been,  by  military  commission;  and  this  has 
occasioned  little  comment,  though  there  were  hundreds 
of  cases.  The  prominence  of  the  cases  of  Vallandigham 
and  MilHgan  should  not  obscure  the  larger  fact  that 
these  cases  were  exceptional:  in  other  words,  the  mili- 
tary trial  of  citizens  for  non-military  offenses  in  peace- 
ful areas  was  far  from  typical.  It  was  thus  a  rare  use 
of  the  military  commission  that  was  declared  illegal  in 
the  Milligan  case. 

Legally,  the  Civil  War  stands  out  as  an  eccentric  pe- 
riod, a  time  when  constitutional  restraints  did  not  fully 
operate  and  when  the  "rule  of  law"  largely  broke  down. 
It  was  a  period  when  opposite  and  conflicting  situa- 
tions coexisted,  when  specious  arguments  and  legal  fic- 
tions were  put  forth  to  excuse  extraordinary  measures. 
It  was  a  period  during  which  the  line  was  blurred  be- 
tween executive,  legislative,  and  judicial  functions;  be- 
tween State  and  Federal  powers;  and  between  military 
and  civil  procedures.  International  law  as  well  as  con- 
stitutional interpretation  was  stretched.  The  powers 
grasped  by  Lincoln  caused  him  to  be  denounced  as  a 
"dictator."  Yet  civil  liberties  were  not  annihilated  and 
no  thoroughgoing  dictatorship  was  established.  There 
was  nothing  like  a  Napoleonic  coup  d'etat.  No  undue 
advantage  was  taken  of  the  emergency  to  force  arbitrary 
rule  upon  the  country  or  to  promote  personal  ends. 
A  comparison  with  European  examples  shows  that 
Lincoln's  government  lacked  many  of  the  earmarks  of 
dictatorial  rule.^  His  administration  did  not,  as  in  some 
dictatorships,   employ  criminal  violence  to  destroy  its 


'In  this  year  of  dictatorships  (1926)  such  comparisons  are  especially 
pertinent. 


522  THE  CONSTITUTION  UNDER  LINCOLN 

opponents  and  perpetuate  its  power.  It  is  significant 
that  Lincoln  half  expected  to  be  defeated  in  1864.  The 
people  were  free  to  defeat  him,  if  they  chose,  at  the 
polls.  The  Constitution,  while  stretched,  was  not  sub- 
verted. The  measures  taken  were  recognized  by  the 
people  as  exceptional;  and  they  were  no  more  excep- 
tional than  the  emergency  for  which  they  were  used. 
Looking  beyond  the  period  called  "reconstruction,"  the 
net  effect,  as  Lincoln  had  said,  was  not  to  give  the 
nation  a  taste  for  extreme  rule  any  more  than  a  pa- 
tient, because  of  the  use  of  emetics  during  illness,  ac- 
quires a  taste  for  them  in  normal  life.  In  a  legal 
study  of  the  war  the  two  most  significant  facts  are  per- 
haps these:  the  wide  extent  of  the  war  powers;  and,  in 
contrast  to  that,  the  manner  in  which  the  men  in  au- 
thority were  nevertheless  controlled  by  the  American 
people's  sense  of  constitutional  government. 


VI 

The  bearing  of  Civil  War  decisions  and  policies  upon 
later  constitutional  history  lies  outside  the  scope  of  this 
book:  hence  comment  on  this  final  subject  must  be  nar- 
rowly confined  and  hmited  to  bare  suggestion.  Con- 
stitutionally and  otherwise,  secession  has  been  a  dead 
issue  since  the  war;  for  the  South,  while  cherishing  the 
achievements  of  its  sons  and  daughters  in  the  ''lost 
cause,"  has  loyally  accepted  the  decision  of  battle.  Our 
ability  to  maintain  on  these  shores  a  continental  nation 
which  is  also  a  union  of  States  has  been  demonstrated. 
After  the  war  ended,  and  the  new  wounds  of  recon- 
struction had  begun  to  heal,  the  nation  resumed  its 
normal  constitutional  course.  In  other  words,  the  war 
did  not  result  in  any  overturning  of  constitutional  gov- 


SUMMARY  AND  CONCLUSION  523 

eminent.  A  new  federalism  has  now  arisen  which  in- 
volves not  only  a  vast  extension  of  national  functions," 
but  a  species  of  State  and  Federal  "cooperation"  through 
which  the  authorities  at  Washington  enter  the  domain 
of  State  government  in  the  building  of  roads,  the  pro- 
tection of  maternity,  and  the  promotion  of  agricultural 
education.  It  is  curious  to  note  that  this  was  partly 
foreshadowed  in  Lincoln's  plan  for  State  emancipation 
with  Federal  compensation,  and  that  Lincoln  proposed 
for  the  purpose  a  constitutional  amendment.''^  Among 
the  unforeseen  legal  results  of  the  w^ar  is  the  discovery 
of  unexpected  possibilities  in  the  Fourteenth  Amend- 
ment which  in  judicial  interpretation  has  been  expanded 
far  beyond  its  original  purpose.^ 

Discussion  of  the  Government  under  Lincoln  leads 
naturally  to  a  comparison  with  that  of  Wilson.  Since, 
however,  an  adequate  treatment  of  issues  arising  during 
the  World  War  is  excluded  by  the  title  and  purpose  of 

'The  amendments  which  followed  the  Civil  War,  and  the  ex- 
tension of  Federal  powers  under  the  interstate  commerce  clause — 
to  mention  but  two  developments — amply  illustrate  this.  Yet  a  reac- 
tion is  in  sight;  and  it  has  made  itself  felt  in  the  Supreme  Court, 
as  for  instance  regarding  certain  acts  of  Congress  restricting  child 
labor.  Recent  utterances  of  President  Coolidge  have  directed  atten- 
tion to  the  need  for  the  preservation  of  State  functions.  (H.  J. 
Fenton,  in  Current  History,  XXII,  613-617.)  Furthermore,  the  old 
vocabulary  as  to  State  and  national  powers  is  becoming  obsolete;  for 
the  pressing  needs  of  this  super-power  age  have  produced  a  new  kind 
of  control  which  is  neither  State  nor  national,  but  regional,  and  which 
operates  through  interstate  agreements  permitted  by  Congress.  (Rich- 
ard Washburn  Child,  "A  Third  United  States,"  Sat.  Eve.  Post,  Feb.  20, 
1926.) 

^  Supra,  Chapter  XV,  sec.  v. 

*  It  is  not  within  the  scope  of  this  book  to  treat  the  judicial  inter- 
pretation of  the  Fourteenth  Amendment.  Passed  to  confer  civil  rights 
upon  the  negro  and  to  protect  him  against  State  action  that  might 
impair  his  rights,  the  amendment  came  to  be  used  as  a  powerful 
instrument  to  restrain  the  States  in  the  regulation  of  corporations. 
The  subject  is  well  summarized  in  C.  A.  Beard,  Contemporary  Ameri- 
can History,  1877-1913,  Ch.  iii.  For  the  later  interpretation  of  the 
Thirteenth  Amendment,  see  supra,  p.  401  n. 


524  THE  CONSTITUTION  UNDER  LINCOLN 

this  book,  we  must  be  content  with  noting  the  recur- 
rence of  certain  former  problems  in  the  recent  war 
period,  and  that  briefly.  The  obvious  emphasis  upon 
the  greater  magnitude  of  the  World  War  over  the  War 
of  the  States  is  somewhat  misleading;  for,  taking  the 
country  over,  the  forces  at  the  front  in  the  Civil  War 
were  comparable  to  those  of  the  United  States  in  the 
W^orld  War,  while  the  human  cost  of  the  Civil  War  was 
greater.  Since  one  was  a  domestic  struggle  while  the 
other  was  waged  across  three  thousand  miles  of  ocean, 
and  since  one  was  of  more  than  twice  the  duration  of 
the  other,  comparison  at  many  points  is  futile.  The 
vastly  greater  complexity  of  the  World  War  is  seen  par- 
ticularly in  material  matters;  and  the  great  expansion 
of  governmental  powers  under  Wilson  is  most  con- 
spicuous on  the  economic  side.  The  World  War  intro- 
duced the  conception  of  "economic  mobilization"  which 
extended  to  undreamed  dimensions  and  involved  gov- 
ernmental control  over  all  essential  material  factors. 
Under  Wilson  the  President's  powers  over  food,  fuel, 
railroads,  shipping,  industries,  trade,  agriculture,  and 
finance,  were  enormously  expanded;  yet  as  to  executive 
powers  assumed  independently  of  Congress,  it  still  ap- 
pears that  Lincoln  went  farther  than  any  President. 
Wilson  never  assumed,  independently,  such  power  as  is 
illustrated  in  Lincoln's  Proclamation  of  Emancipation 
or  his  suspension  of  the  habeas  corpus  privilege.  Most 
of  Wilson's  powers,  in  fact,  were  derived  from  congres- 
sional authorization;  ®  while  Lincoln's  most  conspicuous 
acts  were  without  legislative  authority.  The  extent  to 
which  President  Wilson's  orders  affected  the  machinery 
of  government  finds  no  parallel  under  Lincoln ;  but  con- 
stitutionally one  of  the  significant  developments  in  each 

"C.  A.  Berdahl,  War  Powers  of  the  Executive  in  the  United  State*. 


SUMMARY  AND  CONCLUSION  525 

of  these  war  periods  is  the  great  expansion  of  executive 
authority.^" 

On  the  question  of  disloyalty  a  comparison  of  the 
Lincoln  and  Wilson  administrations  shows  a  striking 
similarity  of  "problems,"  and  an  equally  striking  con- 
trast as  to  measures.^^  Lincoln's  sweeping  assumption 
of  control  over  the  arrest,  detention,  and  release  of  "po- 
litical prisoners"  involved  neither  the  enforcement  of 
statutes  passed  by  Congress,  nor  prosecution  in  the 
courts.  These  matters  were  handled  under  Lincoln  with 
irregularity,  confusion,  and  scant  organization.  Under 
Wilson,  on  the  other  hand,  the  arsenal  of  legislation  was 
full  and  the  organization  elaborate.  The  Attorney  Gen- 
eral's office  under  Bates  in  1864  comprised  eight  persons 
and  had  not  yet  been  raised  to  the  dignity  of  a  de- 
partment. It  took  no  significant  part  in  dealing  with 
disloyalty.  The  yearly  sum  for  salaries  was  $18,264.^- 
Gregory's  Department  in  1918  had  a  salary  expenditure 


2i"  For  Wilson's  Government  there  is  already  a  considerable  literature. 
The  following  references  may  be  noted:  A.  E.  McKinley,  Collected 
Materials  for  the  Study  oj  the  War  (2d  ed.,  Philadelphia,  1918) ;  F.  L. 
Paxson,  "The  American  War  Government,  1917-1918,"  Am.  Hist.  Rev., 
XXVI,  54-76;  Economic  Mobilization  in  the  United  States  for  the  War 
of  1917  (Monograph  No.  2,  Historical  Branch,  General  Staff,  1918); 
C.  A.  Berdahl,  War  Powers  of  the  Executive  in  the  United  Slates 
(Univ.  of  111.  Studies  in  the  Social  Sciences,  Vol.  IX) ;  Preliminary 
Economic  Studies  of  the  War,  edited  by  David  Kinley  (a  series  of 
volumes  published  by  the  Carnegie  Endowment  for  International 
Peace);  Handbook  of  Economic  Agencies  for  the  War  of  1917  (Mono- 
graph No.  3,  Historical  Branch,  General  Staff,  1919).  The  Government 
documents  and  periodical  literature  on  the  subject  are  of  great  volume, 
while  the  unpublished  archives  in  Washington  are  of  staggering  pro- 
portions. For  the  Supreme  Court  adjudication  of  constitutional  points 
connected  with  the  World  War,  see  articles  by  Thomas  Reed  Powell, 
in  Mich.  Law  Rev.,  XIX,  XX,  XXI,  passim.  The  Department  of 
Justice  issued  during  the  war  a  large  number  of  bulletins  under  the 
title  "Interpretation  of  War  Statutes." 

"W.  A.  Dunning,  "Disloyalty  in  Two  Wars,"  Am.  Hist.  Rev.,  XXIV, 
625-630. 

"Payroll  for  Sept.,  1864:   Attorney  General's  papers. 


526  THE  CONSTITUTION  UNDER  LINCOLN 

of  $530,000,  and  had  built  up  a  huge  central  organiza- 
tion with  an  elaborate  field  force.  The  secret-service  di- 
vision of  the  Department  was  five  times  as  large  in  1918 
as  in  1916.  Besides  its  regular  employees,  the  Depart- 
ment commanded  the  service  of  250,000  citizen  volun- 
teers. It  was  said  in  1918  that  "never  in  its  history- 
has  the  country  been  so  thoroughly  policed  as  at  the 
present  time."  ^^  Naturally  this  highly  developed  de- 
partment assumed  a  dominant  role  in  dealing  with  dis- 
loyal practices. 

Such  practices  were,  during  the  recent  war,  handled 
in  the  courts  and  in  pursuance  of  law,  not  by  any  sus- 
pension of  the  habeas  corpus  privilege.  In  April,  1917, 
the  legal  weapons  for  matters  of  disloyalty  included 
little  more  than  the  treason  statutes,^^  the  various  con- 
spiracy statutes, ^^  and  the  old  law  of  1798  concerning 
ahen  enemies.^ ^  The  Government  was  unable  to  obtain 
any  conviction  under  the  treason  statutes;  ^'^  and  the 
conspiracy  law  likewise  proved  inadequate,  thus  present- 
ing an  interesting  parallel  to  the  situation  under  Lincoln. 
For  dealing  with  alien  enemy  activities,  as  the  Attorney 
General  stated,  the  statute  of  1798  did  provide  an  efi"ec- 
tive  instrument.  Whatever  defects  existed  were  soon 
remedied  by  Congress,  which  provided  an  ample  basis 
for  dealing  with  disloyalty  through  the  Espionage  Act.^^ 
the  Selective  Service  Act,^^  and  especially  the  so-called 
"Sedition  Law,"  which  was  passed  in  1918  as  an  amend- 

^*  Report  of  the  Attorney  General,  1918,  pp.  14-15. 

"I.e.,  the  treason  laws  of  1790  and  1862.  Revised  Statutes  oj  the 
U.  S.,  sees.  5331-5334. 

"  Ibid.,  sec.  5336. 

"/bic/.,  sec.  4067. 

"Report  of  the  Attorney  General,  1918,  pp.  41-42. 

"  U.  S.  Stat,  at  Large,  XL,  217. 

"Under  the  Selective  Service  Act  of  May  18,  1917,  any  person  in- 
ducing another  to  evade  military  service  was  made  punishable.  {Ibid., 
76,  sec.  6.) 


SUMMARY  AND  CONCLUSION  527 

ment  to  the  Espionage  Act.-''  Heavy  penalties  were  im- 
posed by  this  measure  upon  any  one  inciting  disloyalty 
or  mutiny  (or  attempting  to  do  so) ;  abusing  the  Gov- 
ernment; uttering  contempt  of  the  form  of  government; 
or  promoting  the  enemy's  cause.  It  is  beyond  the  scope 
of  this  book  to  treat  of  the  enforcement  of  these  stat- 
utes: suffice  it  to  note  that  they  were  actively  enforced, 
and  that  the  suppression  of  disloyalty  was  thus  accom- 
plished within  the  law  and  through  the  civil  courts, 
rather  than  by  extra-legal  means.^^  As  to  those  who 
were  caught  in  the  machinery,  they  were  more  severely 
punished  than  were  the  political  prisoners  under  Lincoln. 

The  social  psychology  of  war  time  had,  of  course, 
much  to  do  with  these  acts  and  these  prosecutions;  for 
in  the  high-pitched  spirit  of  the  national  mind,  any  hint 
of  anti-war  sentiment  brought  scorn  and  suspicion.  The 
Government,  of  course,  had  this  situation  as  well  as  dis- 
loyalty to  cope  with;  and  one  of  the  results  of  the  sys- 
tematic and  lawful  program  of  prosecution  was  to 
suppress  the  officious  activities  of  self-appointed  commit- 
tees, and  to  discourage  "extra-legal  measures  of  intimi- 
dation and  punishment."  In  this  respect,  a  problem 
arose  which  was  similar  to  that  of  Lincoln's  adminis- 
tration.^^  It  was  claimed  by  Wilson's  Department  of 
Justice  that  domestic  lawlessness  and  "privately  organ- 
ized neighborhood  committees"  resulted  in  less  harm  in 
the  World  War  than  in  previous  wars.^' 

Prosecutions  under  the  Espionage  Act  and  its  1918 

*  Act  of  May  16,  1918:   ibid.,  p.  553. 

*^  Other  statutes,  of  course,  bore  upon  disloyalty,  such  as  the  Threats- 
against-the-President  Act,  the  Trading-with-the-Enemy  Act,  the  Sabo- 
tage Law,  and  the  act  concerning  the  naturalization  of  alien  enemies. 
([/.  S.  Stat,  at  Large,  XXXIX,  919;  XL,  411,  533,  542.) 

"Violent  attacks  by  Unionists  upon  newspapers  that  were  regarded 
as  disloyal  have  been  noted  above  (p.  509). 

"Report  of  Attorney  General,  1918,  p.  23. 


528  THE  CONSTITUTION  UNDER  LINCOLN 

amendment  covered  oral  and  published  utterances,  and 
the  problem  of  the  disloyal  brought  into  view  the  whole 
question  of  freedom  of  speech  and  of  the  press.^*  While 
under  Lincoln  such  utterances  were  either  ignored  or 
dealt  with  by  the  executive  after  the  manner  of  martial 
law — e.g.,  by  the  military  suspension  of  a  newspaper — 
during  the  World  War  they  were  dealt  with  in  a  punitive 
way  by  the  enforcement  of  statutes,  the  punishments  re- 
sulting from  conviction  in  the  courts  after  jury  trial. ^'^ 
It  is  Chafee's  view  that  "the  Espionage  Act  prosecutions 
break  with  a  great  tradition  in  English  and  American 
law."  ^^  "Almost  all  the  convictions,"  he  says,  "have 
been  for  expressions  of  opinion  about  the  merits  and 
conduct  of  the  war."  -"^ 

As  to  conscription,  there  was  more  of  contrast  than 
of  parallel;  for  the  prompt,  economical,  and  eflBcient 
draft  of  1917  bore  no  resemblance  to  that  of  the  Civil 
War  with  its  costly  machinery,  its  scandals  of  bounty- 
jumping,  its  substitutes  and  commutation  money,  its 
inefficient  enforcement,  and  its  stigmatizing  of  the  con- 
script.   In  one  matter,  that  of  the  conscientious  objector, 

'*The  question  of  news  control  involves,  of  course,  much  more 
than  a  discussion  of  the  Espionage  Act,  but  that  discussion  cannot  be 
undertaken  here.  See  Chafee,  Freedom  of  Speech,  and  Lucy  M.  Salmon, 
The  Newspaper  and  Authority/.  The  exclusion  of  matter  by  the  postal 
authorities  operated  during  the  World  War  on  lines  somewhat  similar 
to  those  of  the  Civil  War,  but  with  larger  statutory  power.  Sec 
S7ipra,  Chapter  XIX,  sec.  vi,  and  compare  Chafee,  op.  cit.,  pp.  106  et  seq. 
To  treat  the  Committee  on  Public  Information  here  would  obviously 
involve  too  great  a  digression;  but  it  may  be  noted  in  passing  that 
this  committee  depended  largely  upon  voluntary  cooperation  by  the 
press,  and  that  under  Wilson  such  voluntary  cooperation  was  suc- 
ces.sfully  developed  in  many  other  fields,  as  for  instance  in  food 
control.  Such  cooperation  was  tried  under  Lincoln  as  to  newspapers, 
but  it  broke  down.     {Am.  Hist.  Rev.,  XXIII,  305.) 

"Chafee,  however,  has  pointed  out  that  in  times  of  popular  panic 
jury  trial  proves  illusory  as  a  protection  in  matters  involving  freedom 
of  speech.     (Zechariah  Chafee,  Freedom  of  Speech,  76-80.) 

"Ibid.,  p.  116. 

*  Ibid.,  p.  57. 


SUMMARY  AND  CONCLUSION  529 

there  was  a  close  parallel;  for  in  each  case  the  option 
of  non-combatant  service  was  offered  to  those  whose  re- 
ligious scruples  against  war  were  genuine.^^ 

Lack  of  space  requires  the  omission  of  comparisons 
concerning  such  matters  as  the  treatment  of  enemy  prop- 
erty,-^ State  and  Federal  relations,^"  pardon  and  amnesty, 
and  the  like;  nor  is  there  room  to  comment  upon  con- 
gressional attempts  to  assume  the  President's  power.^^ 
We  must  conclude  by  noting  one  more  parallel,  and  that 
the  most  striking  of  all — the  parallel  between  Lincoln's 
statement  of  the  larger  meaning  of  the  war  in  1861  and 
that  of  Wilson  in  1917.  Wilson,  in  his  war  message  and 
at  other  times,  spoke  of  democracy  as  being  at  stake  in 
the  World  War.  Referring  to  the  issue  of  disunion, 
Lincoln  said:  "And  this  issue  embraces  more  than  the 
fate  of  these  United  States.  It  presents  to  the  whole 
family  of  man  the  question  whether  a  constitutional  re- 
public, or  democracy — a  government  of  the  people  by 
the  same  people — can  or  cannot  maintain  its  territorial 
integrity  against  its  own  domestic  foes.  ...  It  forces  us 
to  ask,  Is  there  in  all  republics  this  inherent  and  fatal 
weakness?"  ^-      Though    under   different   circumstances 

^  In  this  respect  section  4  of  the  Selective  Sendee  Act  of  1917 
resembled  section  17  of  the  Act  of  February  24,  1864:  V.  S.  Stat,  at 
Large,  XIII,  9;  XL,  78. 

'*It  is  contended  that  the  original  non-confiscatory  purposes  of  the 
Enemy  Trade  Act  of  1917  were  partly  abandoned  in  certain  amend- 
ments which  authorized  "a  modified  form  of  confiscation  consisting 
of  a  forced  sale  of  German  interests  to  American  citizens  only,"  and 
which  legalized  the  acquisition  of  German-owned  patents.  Carl  Zoll- 
man,  in  Mich.  Law.  Rev.,  XXI,  277-289.  For  the  act  and  its  amend- 
ments, see  U.  S.  Stat,  at  Large,  XL,  411,  459,  1020. 

^  For  a  discussion  of  State  espionage  acts  during  the  World  War,  in 
their  constitutional  bearings  and  in  their  relation  to  the  Federal  Gov- 
ernment, see  Chafee,  op.  cit.,  pp.  110  et  seq. 

"  For  a  comparison  of  congressional  attempts  under  Lincoln  and 
under  Wilson  to  "set  up  an  extra-legal  executive  agency,"  see  W.  E. 
Dodd,  Woodrow  Wilson  and  his  Work,  253  et  seq. 

"  Richardson,  Messages  .  .  .  of  the  Presidents,  VI,  23.  (The  same 
conception  reappeared  as  the  central  theme  in  the  Gettysburg  Address.) 


530  THE  CONSTITUTION  UNDER  LINCOLN 

and  in  different  senses,  Lincoln  and  Wilson  struck  the 
same  note.  Both  considered  that  democracy  was  in  the 
balance;  and  both  were  sustained  amid  bitter  struggles 
by  the  belief  that  they  were  contending  for  political 
principles  of  world-wide  importance. 


BIBLIOGRAPHY 

Source  Collections 

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1861).    New  York,  1907. 

[Appleton's]  American  Annual  Cyclopedia.  42  vols.  New  York, 
1862-1903.  A  valuable  yearbook,  containing  much  source  ma- 
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Johnson,  Allen  (ed.).  Readings  in  American  Constitutional  His- 
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McPherson,  Edward,  The  Political  History  of  the  United  States 
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Moore,  Frank,  The  Rebellion  Record:  A  Diary  of  American  Events, 
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the  following  titles  for  each  session  of  Congress:  House  Ex- 
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631 


532  BIBLIOGRAPHY 

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of  Congressional  Documents. 
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laws  assembled  in  the  order  of  their  passage,  and  includes  also 

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upon  the  subject  of  this  book,  but  most  of  the  useful  records 
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reports  from  various  executive  officers;  reports  of  the  adjutant 
generals  (especially  useful  on  State  and  Federal  relations  and 
on  problems  connected  with  conscription)  ;  handbooks  or  blue- 
books  (giving  statistical  information,  official  directories,  etc.) ; 
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Bynkershoek,  C.  van,  Quaestiones  Juris  Publici.    1737. 

The  Constitution  of  the  United  States,  as  amended  to  January  1, 
1923  (Annotated).  Sen.  Doc.  No.  96,  67  Cong.,  2  sess.  A 
useful  guide  to  the  constitutional  law  of  the  United  States. 

Chafeb,  Zechariah,  Jr.,  Freedom  of  Speech.  New  York,  1920. 
Traces  American  law  on  control  of  speech  and  press  in  a  most 
thorough  manner,  and  treats  judicial  construction  of  the  First 
Amendment.  Deals  chiefly  with  practice  during  the  World  War. 
Contains  bibliography  and  valuable  appendices. 


534  BIBLIOGRAPHY 

Curtis,  George  Ticknor,  Constitutional  History  of  the  United  States 
from  their  Declaration  of  Independence  to  the  Close  of  their 
Civil  War.  2  vols.  New  York,  1889-1896.  This  work  is  valu- 
able for  the  subjects  which  it  treats,  but  it  does  not  even  attempt 
a  discussion  of  constitutional  problems  arising  during  the  Civil 
War. 

Dana,  R.  H.,  Jr.,  Enemies'  Territory  and  Alien  Enemies.  Boston, 
Cambridge,  1864.  Rare  and  out  of  print.  Interprets  the  Su- 
preme Court's  decision  in  the  Prize  Cases. 

Davis,  George  B.,  A  Treatise  on  the  Military  Law  of  the  United 
States.  3d  ed.  rev.,  N.  Y.,  1913.  A  .standard  treatise.  Author 
was  Judge  Advocate  General  of  the  United  States. 

Dtcey,  Albert  Venn,  Introduction  to  the  Study  of  the  Law  of  the 
[English]  Constitution.  7th  ed.,  London,  1908.  First  edition 
published  in  1885  under  the  title  "Lectures  introductory  to 
the  Study  of  the  Law  of  the  Constitution."  The  English  con- 
ception of  the  "rule  of  law"  is  presented  in  Chapter  IV. 

Finlason,  William  F.,  A  Review  of  the  Authorities  as  to  the  Re- 
pression of  Riot  or  Rebellion,  with  Special  Reference  to  Criminal 
or  Civil  Liability.    London,  1868. 

■ ,  A  Treatise  on  Martial  Law,  as  allowed  by  the  Law  of  England, 

in  Time  of  Rebellion,  etc.    London,  1866. 

FiNLEY,  John  H.,  The  American  Executive  and  Executive  Methods. 
New  York,  1908. 

Grotius,  Hugo,  De  Jure  Belli  ac  Pads.  First  published  in  1625. 
Seventy-five  editions  have  been  listed  by  Professor  Reeves  of 
the  University  of  Michigan.  New  York  Times  Book  Review, 
April  12,  1925,  p.  24. 

Hall,  W.  E.,  A  Treatise  on  International  Law.  7th  ed.,  Oxford, 
1917. 

Hare,  J.  I.  C,  American  Constitutional  Law.  2  vols.,  paged  con- 
tinuously.   1st  ed.,  Boston,  1889. 

Hays,  Arthur  Garfield,  Enemy  Property  in  America.  Albany,  New 
York,  1923.  A  useful  commentary  on  the  Trading-with-the- 
Enemy  Act,  with  a  digest  of  reported  and  unreported  cases. 

Hughes,  Charles  E.,  War  Poxoers  under  the  Constitxdion.  Sen.  Doc. 
No.  105,  65  Cong.,  1  sess.,  1917.  An  address  covering  fourteen 
pages  delivered  before  the  American  Bar  iVssociation  at  Sara- 
toga, New  York,  September,  1917.  Upholds  a  wide  extension  of 
the  war  powers  with  historical  argument  and  elaborate  citations. 

Kent,  James,  Commentaries  on  American  Law.  2  vols,  14th  ed., 
Boston,  1896.    (First  published,  1826-1830.) 


BIBLIOGRAPHY  535 

Lalor,  John  J.,  Cyclopedia  of  Political  Science  .  .  .  and  the  Politi- 
cal History  of  the  United  States.  3  vols.  New  York,  1904. 
First  published,  1881.  Especially  valuable  for  the  articles  by 
Alexander  Johnston. 

McLaughlin,  A.  C,  and  Hart,  A.  B.,  Cyclopedia  of  American  Gov- 
ernment.   3  vols.    New  York,  1913. 

The  Military  Laws  of  the  United  States.  Prepared  under  the  direc- 
tion of  Elihu  Root,  Secretary  of  War,  by  Brig.  Gen.  George  B. 
Davis,  Judge  Advocate  General,  with  supplement.  Wash.,  Gov- 
ernment Printing  Office,  1911. 

Parker,  Joel,  Habeas  Corpus  and  Martial  Law.  Cambridge,  Mass., 
1861.  The  author,  a  professor  in  the  Harvard  Law  School, 
answers  Taney's  opinion  in  the  Merryman  case  and  argues  in 
favor  of  instituting  martial  law  in  war  time  in  the  vicinity  of 
an  army. 

Three  Powers  of  Government.    New  York,  1869. 

PuFENDORF,  Samuel  von,  De  Jure  Naturae  et  Gentium.  A  ponderous 
study  of  ancient  and  medieval  usage,  with  which  is  interwoven 
seventeenth  century  doctrines  of  natural  right  philosophy.  First 
published  in  1672. 

Vattel,  E.  de,  Law  of  Nations,  or  principles  of  the  law  of  nature 
applied  to  the  conduct  and  affairs  of  nations  and  sovereigns. 
Luke  White,  ed.,  Dublin,  1792.  Though  basing  much  of  his  rea- 
soning upon  the  "law  of  nature,"  Vattel  relied  extensively  on 
modern  international  usage. 

Wheaton,  Henry,  Elements  of  International  Law.  This  important 
treatise  was  quoted  as  the  chief  American  authority  at  the  time 
of  the  Civil  War.  It  was  first  published  in  1836.  The  sixth 
edition  by  Lawrence  appeared  in  Boston  in  1855,  and  the  eighth 
edition  by  R.  H.  Dana,  Jr.,  was  published  in  Cambridge  in 
1866.  Dana's  annotations  are  extensive  and  have  unique  value 
with  reference  to  Civil  War  practice,  especially  in  regard  to  the 
treatment  of  enemy  property.  The  later  Boyd  edition  (London, 
1889)  shoiild  also  be  noted. 

WiLLOUGHBY,  W.  W.,  Constitutional  Law  of  the  United  States.  2 
vols.    New  York,  1910. 

Wilson,  Woodrow,  Constitutional  Government  in  the  United  States. 
New  York,  1911. 


536  BIBLIOGRAPHY 

Biographical  Works 

MowBRY,  Duane,  "Letters  of  Edward  Bates  and  the  Blairs,  Frank  P. 
(Sr.  and  Jr.),  and  Montgomery,  from  the  private  papers  and 
correspondence  of  Senator  James  R.  Doolittle  of  Wisconsin." 
Mo.  Hist.  Rev.,  XI,  123-146. 

Blaine,  James  G.,  Twenty  Years  of  Congress.  2  vols.  Norwich, 
Conn.,  1884.  Colored  by  the  author's  Northern  sympathies, 
but  valuable  in  its  analysis  of  congressional  problems  and  its 
pointed  characterizations  of  public  men. 

The  Works  of  James  Buchanan,  Comprising  His  Speeches,  State  Pa- 
pers, and  Private  Correspondence.  Collected  and  edited  by  John 
Bassett  Moore.  12  vols.  Philadelphia  &  London,  1911.  The 
eleventh  volume  touches  upon  many  questions  arising  during  the 
Civil  War.  Clear  reasoning  and  loyalty  to  the  Union  pervade 
these  letters. 

Butler,  General  Benjamin  F.,  Butler's  Book.  Boston,  1892.  Gives 
B.  F.  Butler's  opinion  of  B.  F.  Butler. 

Parton,  James,  General  Butler  at  New  Orleans.  Boston,  1892. 
Parton  closely  consulted  Butler  concerning  the  material  for  this 
book  which  was  written,  with  Butler's  approval,  during  the  war. 
In  a  letter  to  Parton,  Butler  insisted  that  only  the  impartial 
truth  be  told.    The  book  is  in  general  eulogistic. 

Marshall,  Jessie  Ames,  ed..  Private  and  Official  Correspondence  of 
General  Benjamin  F.  Butler.  5  vols.,  privately  issued,  1917.  A 
rich  and  extensive  collection  edited  by  Butler's  granddaughter. 

,  Papers  of  John  A.  Campbell,  1S61-1S65.    Southern  Hist.  Soc. 

Papers,  n.  s.,  IV,  3-81. 

Connor,  Henry  G.,  John  Archibald  Campbell,  Associate  Justice  of 
the  United  States  Supreme  Court,  1853-1861.  Boston,  1920. 
Treats  the  informal  negotiations  with  the  Confederate  commis- 
sioners in  March  and  April,  18G1,  the  Hampton  Roads  Con- 
ference, and  Lincoln's  visit  to  Richmond  in  1S65. 

Harris,  Wilmer  C,  Public  Life  of  Zachariah  Chandler,  1851-1875. 
Mich.  Hist'l  Com.,  1918.  An  account  of  a  Northern  "fire  eater" 
in  Congress. 

Diary  and  Correspondence  of  Salmon  P.  Chase.  Am.  Hist.  Ass.  An. 
Rep.,  1902,  Vol.  II.  The  portion  of  the  diary  here  printed 
covers  the  period  from  July  21  to  October  12,  1862.  Of  special 
interest  are  the  letters  from  George  S.  Denison,  charged  with 
treasury  duties  in  Louisiana. 

Dana,  Charles  A.,  Recollections  of  the  CivH  War.    New  York,  1898. 


BIBLIOGRAPHY  537 

Craven,  John  J.,  Prison  Life  of  Jefferson  Davis.    New  York,  1905. 

Based  on  a  daily  record  kept  by  the  chief  medical  oflBcer  at 

Fortress  Monroe. 
DA^^s,   Varina,  Jefferson  Davis,   ex-President   of  the   Confederate 

States  of  America:  A  Memoir  by  His  Wife.    New  York,  1890. 

Frequently  reproduces  Davis'  own  words. 
Gordon,  Armistead  C,  Jefferson  Davis.    New  York,  1918.    Devotes 

a  chapter  to  Davis'  imprisonment  and  trial. 

Jefferson  Davis,  Constitutionalist,  His  Letters,  Papers,  and  Speeches. 
Collected  and  edited  by  Dunbar  Rowland.  10  vols.  Miss.  Dept. 
of  Archives  and  History.  Jackson,  Miss.,  1923.  The  most  im- 
portant work  in  print  for  a  study  of  Davis'  career.  (Briefly 
cited  as  Rowland,  Davis.) 

Letters  of  John  Hay  and  Extracts  from  His  Diarij.  3  vols.  Printed 
but  not  published,  1908.  Selected. by  Henry  Adams;  edited  by 
Mrs.  Hay.    Only  the  initials  of  proper  names  are  printed. 

Autobiography  of  Oliver  Otis  Howard.    2  vols.    New  York,  1907. 

From  the  Autobiography  of  Hershel  V.  Johnson,  1856-1867.  Am. 
Hist.  Rev.,  XXX,  311-336.  Significant  because  of  Johnson's 
opposition  to  secession  and  because  of  his  career  as  Confederate 
States  senator.  Contributed  to  the  Review  by  Professor  Percy 
Scott  Flippin. 

Freeman,  Douglas  Southall  (ed.),  Lee's  Dispatches.  New  York, 
1915.  Unpublished  letters  of  General  Lee  to  President  Davis, 
1862-1865.     A  valuable  collection  of  confidential  dispatches. 

NicoLAY,  Jolm  G.,  and  Hay,  John  (eds.),  Complete  Works  of  Abra- 
ham Lincoln.  Gettysburg  ed.,  12  vols.  New  York,  1905.  Cited 
as  "Nicolay  and  Hay,  Works." 

NicoLAY,  John  G.,  and  Hay,  John,  Abraham  Lincoln:  A  History. 
An  elaborate  account  by  Lincoln's  private  secretaries  who  not 
unnaturally  uphold  the  war  President's  position  in  every  con- 
troversial matter.    Cited  as  "Nicolay  and  Hay,  Lincoln." 

Uncollected  Letters  of  Abraham  Lincoln.  Now  first  brought  together 
by  Gilbert  A.  Tracy;  with  an  introduction  by  Ida  M.  Tarbell. 
Boston  and  New  York,  1917. 

Tarbell,  Ida  M.,  The  Life  of  Abraham  Lincoln.  2  vols.  New  York, 
1909.  Particularly  useful  because  of  the  appendix  to  Vol.  II, 
which  contains  hundreds  of  otherwise  unpublished  Lincoln 
papers. 

Notes  of  Colonel  W.  G.  Moore,  Private  Secretary  to  President  John- 
son, 1866-1868.    Am.  Hist.  Rev.,  XIX,  98-132. 


538  BIBLIOGRAPHY 

FouLKB,  W.  D.,  Life  of  Oliver  P.  Morton.  2  vols.  Indianapolis, 
1899.  A  full,  but  not  exhaustive,  biography  of  Indiana's  war 
governor.  Concerning  the  administration  of  military  matters 
it  adds  little  to  Terrell's  reports  as  adjutant  general. 

Personal  Recollections  of  John  M.  Palmer.    Cincinnati,  1901. 

Letter  of  Governor  [Francis  H.]  Pierpoint  to  .  .  .  the  President  .  .  . 
on  .  .  .  Abuse  of  Military  Power  in  the  Command  of  General 
Butler  in  Virginia  and  North  Carolina.    Washington,  1864. 

Russell,  William  Howard,  My  Diary,  North  and  South.  New  York, 
1863.  Brilliant  and  often  caustic  observations  by  the  corre- 
spondent of  the  London  Times. 

Seward,  Frederick  William,  Reminiscences  of  a  War-time  Statesman 
and  Diplomat,  1830-1915.  The  author  was  Assistant  Secretary 
of  State  under  Lincoln,  Johnson,  and  Hayes. 

The  Works  of  William  Henry  Seward.  Ed.  by  George  E.  Baker. 
5  vols.  Boston,  1887-1890.  Fifth  volume  also  appears  as  "The 
Diplomatic  History  of  the  War  for  the  Union." 

Bancroft,  Frederic,  The  Life  of  William  H.  Seward.  2  vols.  New 
York,  1900. 

Sherman,  John,  Recollections  of  Forty  Years.  Chicago,  1895. 
Covers  Sherman's  career  as  Representative  and  Senator  from 
Ohio,  and  as  Secretary  of  the  Treasury. 

Thorndike,  Rachel  S.  (ed.).  The  Sherman  Letters:  Correspondence 
between  General  Sherman  and  Senator  Sherman  from  1837  to 
1891.    New  York,  1894. 

Howe,  M.  A.  DeWolfe  (ed.),  Home  Letters  of  General  Sherman. 
New  York,  1909. 

Memoirs  of  General  W.  T.  Sherman.    New  York,  1875. 

Stephens,  Alexander  H.,  A  Constitutional  View  of  the  War  be- 
tween the  States.  2  vols.  Philadelphia,  1868-1870.  Ably  pre- 
sents the  Southern  constitutional  viewpoint.  Includes  autobio- 
graphical material. 

,  The  Reviewers  Reviewed:  A  Supplement  to  the  "War  between 

the  States."    New  York,  1872. 

Recollections  of  Alexander  H.  Stephens:  His  Diary  Kept  When  a 
Prisoner  at  Fort  Warren,  Boston  Harbor,  1865 ;  Giving  Incidents 
and  Reflections  of  His  Prison  Life,  etc.  Editer,  with  a  bio- 
graphical study  by  Myrta  L.  Avary.     New  York,  1910. 

WooDBURN,  James  Albert,  The  Life  of  Thaddeus  Stevens.  Indianap- 
oUs,  1913. 

Steiner,  Bernard  C,  Life  of  Roger  Brooke  Taney,  Chief  Justice  of 
the  United  States  Supreme  Court.    Baltimore,  1922. 


BIBLIOGRAPHY  539 

White,  Horace,  Life  of  Lyman  Tnnnhull.  Boston  &  New  York, 
1913.  Throws  light  on  the  habeas  corpus  question,  confiscation, 
the  suppression  of  the  Chicago  Times,  and  the  Thirteenth 
Amendment. 

Diary  of  Gideon  Welles,  Secretary  of  the  Navy  under  Lincoln  and 
Johnson.  Edited,  with  introduction,  by  John  T.  Morse,  Jr. 
3  vols.  Boston  and  New  York,  1911.  A  record  of  primary 
importance  for  the  history  of  the  Lincoln  administration.  Mr. 
Howard  K.  Beale  has  pointed  out  {Am.  Hist.  Rev.,  XXX,  547- 
552)  that  Welles  made  numerous  emendations  in  his  diary — 
"probably  thousands"  of  them — prior  to  publication,  and  that 
the  Diary  as  printed  cannot  be  regarded  as  a  strictly  contempo- 
raneous record.  It  would  be  a  mistake,  however,  to  conclude 
that  the  Diary  has  been  discredited  as  an  historical  source.  It 
is  merely  that  the  printed  edition  does  not  show  the  deletions 
and  emendations,  most  of  which  were  unimportant.  For  all  por- 
tions of  the  Diary  used  in  this  book  the  author  has  consulted 
the  original  manuscript  in  the  Library  of  Congress. 

General  Accounts 

Chadwick,  F.  E.,  Causes  of  the  Civil  War.  (The  American  Nation: 
A  History,  ed.  by  A.  B.  Hart,  Vol.  19.)    New  York,  1905. 

Channing,  Edward,  History  of  the  United  States,  Vol.  VI:  The 
War  for  Southern  Independence.    New  York,  1925. 

Davis,  Jefi"erson,  The  Rise  and  Fall  of  the  Confederate  Government. 
2  vols.    New  York.    1S81. 

Draper,  John  W.,  The  Civil  War  in  America.  New  York,  1867.  Un- 
critical and  lacking  in  documentation. 

Dunning,  William  A.,  Essays  on  the  Civil  War  and  Reconstruction 
and  Related  Topics.  New  York,  1898.  An  excellent  discussion 
of  legal  problems  arising  out  of  the  war  and  their  relation  to 
the  American  constitutional  system.  Emphasis  is  placed  upon 
reconstruction  and  only  a  brief  treatment  of  Civil  War  problems 
is  given. 

,  Reconstruction,  Political  and  Economic.     (American  Nation: 

A  History,  Vol.  22.) 

HosMER,  J.  K.,  The  Appeal  to  Arms.  (American  Nation:  A  His- 
tory, Vol.  20.) 

,  Outcome  of  the  Civil  War.     (American  Nation:  A  History, 

Vol.  21.) 

Oberholtzer,  Ellis  Paxson,  A  History  of  the  United  States  Since  the 
Civil  War.    3  vols,  to  date.    New  York,  1917. 


640  BIBLIOGRAPHY 

Rhodes,  James  Ford,  History  of  the  United  States  from  the  Com- 
promise of  1850  to  the  Final  Restoration  of  Home  Rule  at  the 
South  in  1877.  7  vols.  New  York,  1893-1906.  The  most 
thorough  general  history  of  the  Civil  War  that  has  been  written. 

,  History  of  the  Civil  War,  1861-1865.    New  York,  1917.    A 

fresh  work  on  a  smaller  scale. 

Schwab,  John  C,  The  Confederate  States  of  America,  A  Financial 
and  Industrial  History  of  tJie  South  during  the  Civil  War.  New 
York,  1901. 

Warren,  Charles,  The  Supreme  Court  in  United  States  History. 
3  vols.  Boston,  1922.  Riclily  supplied  with  material  drawn 
from  contemporary  sources.  The  third  volume  treats  of  the 
Civil  War  period. 


Monographs  and  Special  Studies 

Berdahl,  Clarence  A.,  War  Powers  of  the  Executive  in  the  United 
States.  Univ.  of  111.  Studies  in  the  Soc.  Sciences,  Vol.  IX,  Nos. 
1  and  2.  Urbana,  111.,  1921.  Especially  useful  in  its  analysis  of 
the  President's  civil  powers  in  war  time. 

Brooks,  Robert  P.,  Conscription  in  the  Confederate  States  of  Amer- 
ica, 1862-1865.  Bull,  of  the  Univ.  of  Ga.,  Vol.  XVII,  No.  4. 
Athens,  Ga.,  1917. 

Brummer,  Sidney  David,  Political  History  of  New  York  State  dur- 
ing the  Period  of  the  Civil  War.  Columbia  Univ.  Studies  in 
Hist.,  etc..  Vol.  XXXIX,  No.  2,  New  York,  1911. 

Callahan,  James  M.,  Semi-Centennial  History  of  West  Virginia. 
Pub.  by  W.  Va.  Semi-Centennial  Commission,  1913.  Contains 
a  useful  bibliography,  pp.  284-293. 

Chambuun,  Charles  A.  de  P.,  marquis  de.  The  Executive  Power  in 
the  United  States.  Lancaster,  Pa.,  1874.  Ch.  X  deals  with  the 
executive  power  under  Lincoln. 

Cole,  A.  C,  The  Era  of  the  Civil  War,  1848-1870.  (Centennial  Hist, 
of  III.,  Vol.  III.)  Springfield,  111.,  1919.  A  scholarly  account, 
well  grounded  in  source  material. 

Davis,  William  W.,  The  Civil  War  and  Reconstruction  in  Florida. 
Columbia  Univ.  Studies  in  Hist.,  etc.,  Vol.  LIII,  No.  131.  New 
York,  1913.  An  elaborate  and  useful  monograph,  dispassionately 
written. 


BIBLIOGRAPHY  541 

EcKENRODE,  Hamilton  J.,  The  Political  History  of  Virginia  during 
the  Reconstruction.  Johns  Hopkins  Univ.  Studies  in  Hist,  and 
Pol.  Sci.,  Ser.  XXH,  Nos.  6,  7.  8.  Baltimore,  1904.  Chs.  I  and 
n  are  especially  valuable  for  a  study  of  the  "restored  govern- 
ment" of  Virginia  and  its  relations  with  the  Goverrmaent  at 
Washington. 

FiCKLBN,  John  Rose,  History  of  Reconstruction  in  Louisiana 
(through  1868).  Johns  Hopkins  Univ.  Studies  in  Hist,  and 
Pol.  Sci.,  Ser.  XXVHI,  No.  1.  Baltimore,  1910.  This  study 
was  cut  short  by  Professor  Ficklen's  untimely  death  and  the 
volume  was  edited  by  Professor  Pierce  Butler. 

H\LL,  Clifton  R.,  Andrew  Johnson,  Military  Governor  of  Tennessee. 
Princeton  Univ.  Press,  1916.  A  scholarly  dissertation  based 
upon  the  sources,  including  the  Johnson  papers  in  the  Library 
of  Congress. 

H.\LL,  Gran\'ille  D.,  The  Rending  of  Virginia.  Chicago,  1902.  Writ- 
ten from  the  West  Virginia  viewpoint.  The  writer  reported  the 
proceedings  of  the  Constitutional  Convention  of  West  Virginia 
of  1861  to  the  Wheeling  Intelligencer. 

Hirst,  Margaret  E.,  The  Quakers  in  Peace  and  War:  An  Account 
of  Their  Peace  Principles  and  Practice.  Introduction  by  Rufus 
M.  Jones.  New  York,  1923.  An  exhaustive,  scholarly  treat- 
ment of  Quaker  opposition  to  war  and  military  training  in 
England,  the  United  States  and  abroad. 

Lewis,  Virgil  A.,  History  of  West  Virginia.    Philadelphia,  1889. 

,  How  West  Virginia  was  Made.    Charleston,  W.  Va.,  1909.    A 

sourcebook. 

LoNX,  Ella,  Reconstruction  in  Louisiana.  New  York,  1918.  This 
excellent  study  begins  with  1869,  supplementing  the  work  of 
Professor  Ficklen. 

McGregor,  James  C,  The  Disruption  of  Virginia.  New  York,  1922. 
An  able  monograph  in  the  light  of  which  many  oft-stated  views, 
particularly  as  to  the  extent  of  popular  support  for  the  new 
State  movement,  will  have  to  be  revised. 

Marshall,  John  A.,  The  American  Bastille:  A  History  of  Illegal 
Arrests  and  Imprisonments  during  the  Civil  War.  Philadelphia, 
1869.  A  compilation  prepared  by  the  historian  of  the  Associa- 
tion of  Prisoners  of  State.  Made  up  of  the  experiences  of 
prisoners.    Adds  little  to  the  Official  Records,  except  abuse. 

Moore,  Albert  B.,  Conscription  and  Conflict  in  the  Confederacy. 
New  York,  1924.  Ch.  VHI,  "The  Courts  and  Conscription," 
gives  judicial  opinion  of  Confederate  conscription  and  throws 
indirect  light  upon  the  Federal  conscription  law. 


542  BIBLIOGRAPHY 

Parker,  Granville,  The  Formation  of  the  State  of  West  Virginia. 
Wellsburg,  W.  Va.,  1875. 

Plum,  William  R.,  The  Military  Telegraph  during  the  Civil  War  in 
the  United  States.    Chicago,  1882. 

Randall,  James  G.,  The  Confiscation  of  Property  during  the  Civil 
War.  Indianapolis,  Henkel-Randall  Printing  Co.  (formerly  the 
Mutual  Printing  Co.),  1913.  A  dissertation  for  the  University 
of  Chicago,  much  condensed  in  publication. 

Scott,  Eben  Grcenough,  Reconstruction  during  the  Civil  War  in  the 
United  States  of  America.  Boston  and  New  York,  1895.  De- 
voted largely  to  constitutional  history  and  a  discussion  of  the 
legal  relation  of  the  States  to  the  Union. 

Sellery,  George  Clark,  Lincoln's  Suspensio7i  of  Habeas  Corpus  as 
Viewed  by  Congress.  Bulletin  of  the  Univ.  of  Wisconsin,  Hist. 
Ser.,  Vol.  I,  No.  3,  pp.  213-286.  Traces  the  development  of 
legislative  action  concerning  the  writ. 

Trexler,  Harrison  Anthony,  Slavery  in  Missouri,  1804-1865.  Balti- 
more, 1914.  A  Johns  Hopkins  dissertation,  largely  based  on 
unpublished  sources. 

Upton,  Emory,  Brevet  Major  General,  U.  S.  Army,  The  Military 
Policy  of  the  United  States.  Washington,  Gov't  Ptg.  Office, 
1911.  An  elaborate,  scholarly  study  which  devotes  much  space 
to  the  Civil  War,  reviewing  executive  and  legislative  measures 
to  meet  the  emergency,  treating  the  President's  war  powers,  and 
criticizing  in  detail  the  inefficiency  which  characterized  the  mili- 
tary policy  of  that  period. 

Weeden,  W.  B.,  War  Government,  Federal  and  State.  Boston,  1906. 
Deals  with  certain  phases  of  administration  during  the  Civil 
War,  showing  that  government  in  State  and  nation  was  badly 
muddled  and  that  the  public  business  was  inefficiently  and 
wastefuUy  handled. 

White,  Howard,  Executive  Influence  in  Determining  Military  Policy 
in  the  United  States.  Univ.  of  111.  Studies  in  Soc.  Sciences,  Vol. 
XII,  No.  1.    Urbana,  111.,  1924. 

Whiting,  William,  War  Powers  under  the  Constitution  of  the  United 
States.  Boston,  1871.  Written  first  as  war  pamphlets  and 
later  republished  in  many  editions.  Shows  more  legal  learning 
than  judgment,  and  seeks  to  justify  everything  which  the  Gov- 
ernment did.  Author  was  Solicitor  for  the  War  Department 
at  the  time  of  the  Civil  War.  As  a  study  of  constitutional 
problems  of  the  Civil  War  this  volume,  in  spite  of  its  faults, 
has  value,  particularly  because  of  its  many  references,  and  the 
documents  which  it  incorporates. 


BIBLIOGRAPHY  543 

WiLLEY,  William  P.,  An  Inside  View  of  the  Formation  of  West  Vir- 
ginia. Wheeling,  1901.  An  uncritical  work  written  from  the 
viewpoint  of  the  separationists.  Contains  character  sketches  of 
prominent  West  Virginians. 

Articles  in  Periodicals 

Adams,  Charles  Francis,  "John  Quincy  Adams  and  Martial  Law," 
Mass.  Hist.  Soc.  Proc.,  2d  Ser.,  XV,  436-478  (1902).  Empha- 
sizes Adams'  support  of  emancipation  as  a  possible  military 
measure  and  credits  him  with  originating  the  Emancipation 
Proclamation. 

Ballantine,  "Unconstitutional  Claims  of  Military  Authority."  Yale 
Law  Jour.,  Jan.,  1915. 

Douglas,  Clarence  D.,  "Conscription  and  the  Writ  of  Habeas  Corpus 
during  the  Civil  War."  Historical  Papers,  published  by  Trinity 
College  Historical  Society,  Durham,  N.  C,  Ser.  XIV,  1923. 

Dunning,  William  A.,  "Disloyalty  in  Two  Wars."  Am.  Hist.  Rev., 
XXIV,  625-630. 

Fisher,  S.  G.,  "Suspension  of  Habeas  Corpus  during  the  War  of 
the  Rebellion."     Pol.  Sci.  Quar.,  Ill,  454-488. 

Hagan,  Horace  H.,  "United  States  vs.  Jefferson  Davis.  Sewanee 
Review,  XXV,  220-225  (April,  1917). 

Hall,  James  Parker,  "Freedom  of  Speech  in  War  Time."  Columbia 
Law  Rev.,  XXI,  526-537. 

Hart,  A.  B.,  "Constitutional  Questions  of  the  Civil  War."  McLaugh- 
lin and  Hart,  Cyclopedia  of  American  Government,  1,  288. 

HoLDswoRTH,  W.  S.,  "Martial  Law  Historically  Considered."  Law 
Quart.  Rev.,  XVIII,  117-132. 

J.  H.  A.,  "Martial  Law."  American  Law  Register,  o.  s.  IX,  498- 
511.     (May,  1861.) 

Nichols,  Roy  F.,  "The  United  States  vs.  Jefferson  Davis."  Am. 
Hist.  Rev.,  XXXI,  266-284. 

Oakes,  James,  "Lessons  from  the  Civil  War  Conscription  Acts." 
HI.  Law  Rev.,  XI,  77-97. 

Peabody,  Judge  C.  A.,  "The  United  States  Provisional  Court  for 
Louisiana,  1862-1865."  Amer.  Hist.  Ass.  Ann.  Rep.,  1892,  pp. 
197-210. 

Pollock,  Frederick,  "What  is  Martial  Law?"  Law  Quart.  Rev., 
XVIII,   152-158. 

"The  Provisional  Judiciary  of  Louisiana."  Amer,  Law  Reg.,  n.  s., 
IV,  257-269  (Mar.,  1865). 


544  BIBLIOGRAPHY 

Randall,  James  G.,  "Some  Legal  Aspects  of  the  Confiscation  Acts 
of  the  Civil  War."    Am.  Hist.  Rev.,  XVIII,  79-96. 

,  "Captured  and  Abandoned  Property  during  the  Civil  War." 

Am.  Hist.  Rev.,  XIX,  65-79. 

,  "The  Virginia   Debt  Controversy."     Pol.  Sci.  Quar.,  XXX, 

553-577. 
,  "The    Newspaper    Problem    in    Its    Bearing    upon    Military 

Secrecy  during  the  Civil  War."    Am.  Hist.  Rev.,  XXIII,  303- 

323. 

,  "The  Indemnity  Act  of  1863:  A  Study  in  the  Wartime  Im- 
munity of  Governmental  Officers."  Mich.  Law  Rev.,  XX,  589- 
613. 

,  "The  Rule  of  Law  under  the  Lincoln  Administration."    Paper 

read  at  the  meeting  of  the  American  Historical  Association,  De- 
cember, 1925. 

Richards,  H.  Earle,  "Martial  Law."  Law  Quart.  Rev.,  XVIII,  133- 
142. 

Shannon,  Fred  A.,  "State  Rights  and  the  Union  Army."  Miss. 
Vail.  Hist.  Rev.,  XII,  51-71. 

,"Conscription  and  the  Bounty  Problem."    Paper  read  at  the 

meeting  of  the  American  Historical  Association,  December,  1925. 

,  "The  Mercenary  Factor  in  the  Creation  of  the  Union  Army." 

Miss.  Vail.  Hist.  Rev.,  XII,  523-549. 

Watson,  D.  K.,  "The  Trial  of  Jefferson  Davis:  An  Interesting  Con- 
stitutional Question."    Yale  Law  Jour.,  XXIV,  669-676. 

Newspapers 

It  is  impracticable  to  give  a  list  of  newspapers  for  the  Civil 
War  period.  The  writer's  above-mentioned  article  in  the 
American  Historical  Review  (XXIII,  303-323)  sets  forth  some 
of  the  conditions  under  w'hich  the  papers  of  the  time  were 
published  and  suggests  certain  precautions  which  the  historian 
should  observe  in  their  use.  In  a  legal  study  the  daily  journals 
must  often  be  consulted  as  the  only  published  source  of  certain 
otherwise  unreported  judicial  decisions.  One  finds  in  the  New 
York  Tribune  for  December,  1864,  for  instance,  and  also  in  the 
Times,  elaborate  reports  of  the  Opdyke-Wced  libel  suit;  and 
one  must  turn  to  the  daily  papers  for  reports  of  the  prosecution 
of  General  Dix  for  his  action  in  suppressing  the  New  York 
World  in  18G4.  Much  of  the  material  for  a  study  of  the  for- 
mation of  West  Virginia  is  to  be  found  in  the  pages  of  the 
Wheeling  Intelligencer.    Among  the  metropolitan  dailies  the 


BIBLIOGRAPHY  545 

Tribune,  World,  Times,  Daily  News,  and  Herald  of  New  York, 
and  the  Chicago  Tribune  deserve  special  mention.  One  must 
make  allowance  for  anti-Lincoln  bias  in  reading  the  Chicago 
Times  and  the  same  may  be  said  of  the  New  York  Daihj  News, 
the  New  York  World,  and,  to  a  certain  extent,  the  New  York 
Herald.  The  eccentricities  of  Greeley  are  evident  in  the  New 
York  Tribune.  Specific  instances  in  which  newspaper  sources 
have  been  used  for  statements  incorporated  into  the  text  of 
this  book  are  indicated  in  the  footnotes.  Representative  lists 
of  newspapers  are  given  in  the  following  guides:  A  Check 
List  of  Newspapers  in  the  Library  of  Congress  (Washington, 
1901) ;  Checklist  of  Newspapers  and  Official  Gazettes  in  the 
New  York  Public  Library  (New  York,  1915)  [  A  List  of  News- 
papers in  the  Yale  University  Library  (New  Haven,  1916) ; 
Frank  W.  Scott,  Newspapers  and  Periodicals  of  Illinois,  1814- 
1879  {Illinois  Historical  Collections,  Vol.  VI). 

Archives  and  Manuscripts 

To  a  large  extent  the  material  for  this  book  has  been  sought 
in  unpublished  sources,  and  in  the  following  pages  the  more 
important  groups  of  such  sources  are  indicated.  An  introduc- 
tion to  the  archives  of  the  Federal  Government  is  given  in 
C.  H.  Van  Tyne  and  W.  G.  Leland,  Guide  to  the  Archives  of 
the  Government  of  the  United  States  in  Washington  (2d  ed., 
Washington,  1907).  A  very  complete  report  by  the  Librarian 
of  Congress  on  Federal  archives  outside  of  Washington  is 
given  in  House  Document  1443,  62d  Congress,  3d  session 
(1913).  The  most  important  guide  to  manuscripts  is  the 
Handbook  of  Manuscripts  in  the  Library  of  Congress  (Wash- 
ington, 1918).  As  new  manuscripts  are  acquired  by  the 
Library  of  Congress  they  are  listed  in  the  American  Historical 
Review. 

Archives  of  the  Treasury  Department,  Washington.  Especially  for 
the  subject  of  confiscation  these  archives  are  of  great  value. 
The  mass  of  material  concerning  captured  property,  the  records 
touching  Confederate  sequestration,  the  papers  concerning  the 
"cotton  loan"  and  other  transactions  of  the  Confederate  treasury, 
and  the  more  general  collection  of  Confederate  archives  (partly 
captured  and  partly  purchased),  are  among  the  historical  ma- 
terial in  these  records. 

Attorney  General's  Papers.  MSS.  in  the  Library  of  Congress, 
Washington.     Information   concerning   the  Attorney  General's 


546  BIBLIOGRAPHY 

oflBce  is  to  be  found  in  James  S.  Easby  Smith,  The  Department 
of  Justice:  Its  History  and  Functions  (Wash.,  1904)  and  in 
the  following  documents:  Sen.  Rep.  507,  50  Cong.,  1  sess.;  Sen. 
Ex.  Doc.  109,  47  Cong.,  1  sess.  The  Department  of  Justice 
was  not  created  until  1S70  and  the  personnel  of  the  Attorney 
General's  office  at  the  time  of  the  Civil  War  was  inadequate 
for  its  heavy  duties,  as  there  were  only  eight  persons  on  the 
entire  staff  of  the  office  in  18G2,  including  four  clerks  and  a 
messenger.  The  papers  of  historical  interest  for  the  Civil  War 
period  are  the  incoming  letters  (which  are  a  mere  jumble  with 
no  sort  of  arrangement),  the  letter  books,  giving  fair  copies 
of  outgoing  letters,  and  beautifully  written  copies  of  instruc- 
tions to  district  attorneys.  By  a  laborious  examination  of  the 
great  mass  of  incoming  papers  the  writer  has  found  many 
things  of  historical  interest,  especially  communications  from  dis- 
trict attorneys  over  the  country  regarding  conditions  attending 
the  enforcement  of  war  statutes. 

Archives  of  the  State  Department,  Washington.  Inasmuch  as  the 
Secretary  of  State  had  charge  of  arbitrary  arrests  in  18G1,  the 
archives  of  the  State  Department  are  of  value  for  this  subject. 
Lists  of  political  prisoners  arrested  early  in  the  war  are  to  be 
found  among  the  Department's  records,  but  these  have  been 
published  in  the  Official  Records.  The  "domestic  letters"  cover 
many  subjects  such  as  the  liability  of  aliens  under  the  Con- 
scription Act,  arrests  of  foreigners,  instructions  to  Federal  offi- 
cials regarding  the  disregard  of  the  writ  of  habeas  corpus,  pre- 
tended foreign  citizenship  of  Confederate  agents,  and  requests 
to  the  Post  Office  Department  regarding  the  interception  of 
letters  of  suspected  persons. 

United  States  District  and  Circuit  Court  Records.  The  records  of 
the  United  States  circuit  and  district  courts  are  for  the  most 
part  w^ell  preserved,  except  where  some  accident  has  caused  their 
destruction,  as  in  the  case  of  the  Chicago  fire  of  1S71.  In  the 
docket  books  the  arrangement  is  chronological  and  a  brief  indi- 
cation of  the  proceedings  under  each  case  is  given,  but  for  the 
full  record  one  must  turn  to  the  papers  filed  under  the  various 
cases.  The  importance  of  these  records  for  unreported  cases  is 
obvious,  but  it  should  be  added  that  the  most  significant  actions 
have  been  reported  in  the  set  known  as  Federal  Cases. 

Records  of  the  United  States  Supreme  Court.  Since  the  published 
reports  of  the  Supreme  Court  include  only  cases  brought  to  trial, 
one  must  consult  the  original  docket  for  information  regarding 
such  a  case  as  that  of  Jefferson  Davis,  in  which  a  decree  of  the 
Supreme  Court  was  sought  but  not  obtained,  owing  to  the  dis- 


BIBLIOGRAPHY  547 

missal  of  the  case.  A  useful  compilation  known  as  "Records 
and  Briefs  of  the  United  States  Supreme  Court"  is  found  in  the 
Law  Division  of  the  Library  of  Congress.  In  this  compilation 
one  may  obtain  full  printed  records  (which  often  exceed  a  thou- 
sand pages  for  a  single  case),  briefs  of  counsel,  reports  of  special 
masters,  and  like  material. 

State  Archives.  The  archives  of  the  State  governments  for  the 
period  of  the  Civil  War  are  of  uneven  quality.  In  Ohio, 
Pennsylvania,  Illinois  and  elsewhere,  the  governors'  correspond- 
ence is  not  available.  The  writer  was  unable,  for  instance,  to 
satisfy  his  curiosity  as  to  what  became  of  the  papers  of  Governor 
Curtin  of  Pennsylvania.  The  correspondence  of  Governor 
Morton  of  Indiana  may  be  consulted  in  the  State  Library  at 
Indianapolis  and  certain  papers  of  Governor  Salomon  of  Wis- 
consin are  deposited  in  the  library  of  the  State  Historical  Society 
at  Madison.  The  executive  papers  at  Richmond,  Virginia,  are 
of  interest.  While  not  attempting  the  impossible  task  of  search- 
ing all  the  State  archival  material,  the  writer  examined  enough 
to  afford  an  insight  into  typical  problems  of  State  administration 
in  their  relation  to  the  National  Government. 

Bates  Diary.  The  unpublished  diary  of  Attorney  General  Bates  is 
not  a  systematic  journal,  but  rather  a  series  of  occasional  jot- 
tings, with  notes,  clippings,  pasted-in  letters,  and  miscellaneous 
material.  Bates  resisted  certain  extraordinary  measures  of 
military  control  and  in  general  took  a  conservative  attitude, 
emphasizing  civil  rights  as  against  governmental  encroachment. 
He  not  infrequently  criticized  colleagues  in  the  Cabinet.  For 
the  opportunity  to  consult  this  interesting  diary  the  writer  is 
indebted  to  Miss  Helen  Nicolay,  of  Washington,  D.  C. 

Bates  Papers.  Some  of  Bates'  papers  are  to  be  found  in  the  Jeffer- 
son Memorial  Library  at  St.  Louis. 

Diary  of  Orville  H.  Browning.  A  voluminous  journal  by  Senator 
Browning  of  Illinois,  successor  of  Douglas,  devoted  friend  of 
Lincoln,  and  Secretary  of  the  Interior  under  Johnson.  With 
minor  gaps  the  record  is  continuous  from  1850  to  ISSl,  and  it 
is  very  full  for  the  years  of  the  Civil  War  when  Browning  held 
a  uniquely  intimate  and  confidential  relation  with  the  President. 
As  a  man  of  conservative  views.  Browning  differed  with  Lincoln 
on  various  measures  in  the  latter  part  of  the  war,  but  he  always 
retained  the  President's  confidence  and  friendship.  The  diary 
throws  much  light  on  the  personnel  and  activities  of  the  war 
Congresses.  An  interesting  account  of  the  diary,  with  significant 
extracts,  is  to  be  found  in  a  pamphlet  entitled  "The  Diary  of 
Orville  H.  Browning:  A  New  Source  for  Lincoln's  Presidency," 


548  BIBLIOGRAPHY 

by  Professor  Theodore  Calvin  Pease  of  the  University  of  Illinois 
(University  of  Chicago  Press,  1924).  Professor  Pease  is  joint 
editor  with  the  present  writer  in  preparing  the  diary  for  publi- 
cation in  the  Illinois  Historical  Collections. 

Johnson  Papers.  MSS.  in  the  Library  of  Congress,  Washington.  This 
important  collection  comprises  179  bound  volumes  covering  the 
period  from  ISSl-  to  1S91.  It  is  of  importance  not  only  for 
Johnson's  presidency,  but  for  the  period  of  his  service  as  military 
governor  of  Tennessee. 

Pierpoint  Papers.  MSS.  in  the  Virginia  State  Library,  Richmond. 
There  are  thirty-three  boxes  in  this  interesting  collection  of 
archives  of  the  "restored  government"  of  Virginia.  The  papers 
are  rich  in  local  color,  revealing  many  details  that  have  never 
appeared  in  print,  and  are  of  importance  for  a  study  of  the 
West  Virginia  movement.  Besides  a  great  number  of  letters 
to  and  from  Governor  Pierpoint,  the  collection  includes  election 
returns  (revealing  the  irregular  character  of  Unionist  elections 
in  Virginia),  signed  oaths  of  allegiance  to  the  United  States, 
and  reports  of  executive  officials. 

Stanton  Papers.  MSS.  in  the  Library  of  Congress,  Washington. 
Original  letters  of  Lincoln,  Chase,  Grant,  Seward,  Curtin,  Bates, 
Greeley  and  many  other  prominent  men  are  found  in  this 
voluminous  collection.  Though  military  matters  claim  chief 
attention,  a  great  variety  of  subjects  is  covered.  The  collec- 
tion comprises  thirty-six  volumes  of  manuscripts, 

Trumbull  Manuscripts.  Library  of  Congress,  Washington.  An  ex- 
tensive collection  comprising  seventy-seven  volumes  of  private 
correspondence  from  1855  to  1872.  The  papers  are  most  numer- 
ous for  the  year  1861.  They  include  many  interesting  letters 
from  Trumbull's  Illinois  constituents  concerning  public  measures 
with  which  he  was  particularly  associated,  such  as  the  second 
Confiscation  Act  and  the  Habeas  Corpus  Act.  There  are  many 
papers  giving  expressions  of  sentiment  concerning  the  slavery 
question.  Photo-duplicates  of  the  more  important  papers  are 
available  in  the  Illinois  Historical  Survey,  Urbana,  Illinois. 

Welles  Papers.  MSS.  in  the  Library  of  Congress,  Washington.  This 
collection  includes  miscellaneous  letters,  Welles'  official  letter 
books  as  Secretary  of  the  Navy,  manuscripts  of  magazine 
articles,  the  original  manuscript  of  the  Welles  Diary,  clippings, 
and  scrap  books. 


INDEX 


Abandoned  Estates,  326  ff. 

Abandoned  property.  See  Cap- 
tured and  Abandoned  Property 
Act. 

Ableman  vs.  Booth,  430. 

Accomac  County,  Virginia,  461. 

Adams,  John,  and  Sedition  Act, 
478^. 

Adams,  John  Quincy,  on  belli- 
gerent right  of  emancipation, 
343-347 ;  denounces  British 
action  in  deporting  slaves,  344- 
346;  credited  with  originating 
Emancipation  Proclamation, 

344;  on  slavery  and  martial 
law,  374  Jj. 

Adjutant   General,   152  n. 

Admiralty  procedure,  and  confis- 
cation," 280,  285. 

Agnew,  Justice,  on  partisan  atti- 
tude of  judges,  12;  on  war 
powers,  32. 

Agreement  of  the  People  (Eng- 
lish),  239  71. 

Ainsworth,  Col.  F.  C,  152  n. 

Alabama,  blockaded,  50;  and  con- 
fiscation, 309;  cases  on  conscrip- 
tion, 429. 

Alexandria,  Virginia,  arrest  of 
Episcopal  minister,  155;  restored 
government  at,  223  n.,  461  Jj.; 
confiscation  cases,  290,  329; 
litigation  as  to  Arlington  estate, 
321 ;  constitutional  convention 
of  1864,  462;  representation  in 
Congress,  464-465. 

Alien  Enemy  Act  of  1798,  used 
under  Wilson,  526. 

Alien  Property    Custodian,    302  n. 

Aliens,    liability    of,    under    the 

549 


draft,  264-268;  act  of  February 
24,   1864,  268. 

Allegiance,  Oath  of,  in  Louisiana, 
221 ;  not  required  from  Mexi- 
cans, 221 ;  not  required  of 
judges  in  Tennessee,  230  n.;  and 
Federal  tax  in  South,  320;  and 
pardon,  333. 

Amana  Society,  263. 

Amending  process,  discussion  at 
time  of  Thirteenth  Amend- 
ment, 391  j^.;  "unamendable" 
parts  of  Constitution,  394  and  n. 

Amendments  to  the  Constitution, 
summarized,  392;  post-war 
amendments  and  extension  of 
Federal  powers,  523  n.  For  par- 
ticular amendments,  see  First 
Amendment,  Fifth  Amendment, 
Thirteenth  Amendment,  etc. 

American  Bastille,  150. 

American  people,  legal-minded- 
ness  of,  472,  511  jjf.,  519,  522. 

American  Telegraph  Company, 
483. 

Ames,  Bishop,  148. 

Ammen,  General,  and  suppression 
of  Chicago  Times,  493. 

Amnesty.     See   pardon. 

Amy  Warwick,  The,  72. 

Andrew,  John  A.,  Governor  of 
Massachusetts,  activities  as  "war 
minister,"  413-416;  controversy 
with  B.  F.  Butler,  415. 

Annexation,  distinguished  from 
military  occupation,  217. 

Anthony,  H.  B.,  Senator  from 
Rhode  Island,  263. 

Anti-administration  leaders.  See 
Vallandigham,  Vorhees,  etc. 


550 


INDEX 


Applegate,  Joseph,  447. 

Appomattox.     See   surrender. 

Arbitrary  arrests.     See  arrests. 

Arbitration,  international,  as  to 
British  debts,  306;  as  to  de- 
portation of  slaves,  345  jj. 

Archives  (for  a  constitution- 
al study  of  the  Civil  War), 
545  JJ. 

Arkansas,  beginning  of  the  rebel- 
lion, 50  71.;  proceeds  from 
confiscation,  289;  judicial  appli- 
cation of  Emancipation  Procla- 
mation, 382  n.;  Federal  liabihty 
of  the  governor,  419. 

Arlington,  seizure  of,  320-322; 
compensation  paid  to  Lee  heirs, 
322. 

Armstrong's  Foundry,  285  n.,  esp. 
333,  335. 

Army  of  the  United  States,  Lin- 
coln's call  of  May  3,  1861,  pp.  38, 
244;  increase  of,  by  presidential 
proclamation,  38  ?i.;  act  to  in- 
crease pay  of,  55  n.,  129;  States 
of  South  expected  to  supply 
troops,  222;  State  and  Federal 
adjustments,  410  j5^.;  Upton's 
comment  as  to  State  governors' 
functions,  418  n.;  appropriation 
bill  of  July  17,  1861,  p.  426;  regu- 
lars and  volunteers,  241 ;  addi- 
tions to  regular,  243,  244.  See 
also  courts-martial,  conscrip- 
tion, militia. 

Army  Act  (English),  141  n. 

Arnold,  I.  N.,  and  bill  to  give 
effect  to  Emancipation  Procla- 
mation, 383  71.;  and  suppression 
of  Chicago  Times,  496  n. 

Arrests,  arbitrary,  for  resisting  the 
draft,  81 ;  of  pohtical  prisoners, 
149 jj'.;  number  of,  152 n.;  rea- 
sons for,  155;  during  military 
occupation,  226;  and  habeas 
corpus  writs  in  State  courts, 
428-429;  in  relation  to  freedom 
of  the  press,  4.77  n.;  Lincoln's 
instruction  on,  508.  See  also 
editors,  arrest  of. 


Arrests,  false,  liabihty  for,  197. 
See  also  Indemnity  Act. 

Articles  of  War,  141. 

Articles  of  War,  Fifty-seventh,  and 
newspaper  correspondents,  489- 
490. 

Arver  vs.  United  States,  274. 

Assassination,  of  Lincoln,  attrib- 
uted to  influence  of  Confederate 
leaders,  96;  of  the  President,  104 
and  n. 

Attachment,  writ  of,  158,  162. 

Attainder,  constitutional  provision, 
74-75;  in  relation  to  constitu- 
tionality of  Confiscation  Act, 
278;  Lincoln  on,  280.  See  also 
treason,  confiscation. 

Attorney  General,  policy  as  to 
prosecutions  for  treason,  86,  89- 
90,  92;  instmctions  as  to  con- 
fiscation after  the  war,  329; 
office  of,  under  Lincoln,  com- 
pared to  that  under  Wilson, 
525-526.  See  also  Bates,  Speed, 
Stanbery,  E^•arts. 

Australian  Commonwealth,  no 
conscription,   240. 

Avengo  vs.  Schmidt,  288  n. 


Baltimore,  order  as  to  arrests, 
154;  arrest  of  police  commis- 
sioners, 165  n. 

Baltimore  Exchange,  sympathy 
with  the  South,  488;  editor  and 
proprietor   aiTcsted,    503-504. 

Bancroft,  Frederic,  150. 

Bangor,    Maine.    149  n. 

Banks,  General  Nathaniel  P.,  mili- 
tar>'  governor  in  Louisiana, 
228. 

Banks,  national,  act  for  creating, 
406. 

Barber  vs.  Ir\vin,  271  n. 

Bates,  Edwards,  views  concerning 
Supreme  Court,  8n.;  on  treason 
prosecutions,  87,  88  n.,  93;  on 
suspension  of  habeas  corpus 
privilege,  124.  132,  135;  on 
martial  law,  142  n.;  on  military 


INDEX 


551 


and  civil  conflict  in  Missouri, 
148;  on  Milligan  case,  180  n.; 
on  "provost-marshal  justice," 
233;  instructions  as  to  confisca- 
tion, 284  n. ;  on  Reconstruction 
radicals,  400  tj.;  suggests  written 
opinions  on  West  Virginia  bill, 
457;  gives  opinion  on  West  Vir- 
ginia bill,  459;  denounces  B.  F. 
Butler's  military  rule  at  Norfolk, 
468;  organization  of  his  office, 
525,  546;  mentioned,  282;  diary, 
547. 

Bayard,  J.  A.,  Senator  from  Dela- 
ware, on  Indemnity  Bill,  212  n.; 
moves  postponement  of  con- 
scription  bill,   270  n. 

Beach,  S.  Ferguson,  in  Davis  case, 
107;  claims  seat  in  Congress, 
464  and  n. 

Bean   vs.  Beckwith,   195  n. 

Beecher,  Henry  Ward,  157  n. 

Belligerent  right  of  emancipation, 
374. 

Benjamin,  Judah  P.,  111. 

Berger,  Victor  L.,   113  n. 

Berkeley  County,  (western)  Vir- 
ginia, annexation  to  West  Vir- 
ginia contested,  469-472,  475. 

Betts,  Judge,  on  confiscation,  309, 
310. 

Biddle,  C.  J.,  Representative,  re- 
marks on  habeas  corpus  bill, 
130. 

Bigelow  vs.  Forrest,  286,  335. 

Binckley,  J.  M.,  Acting  Attorney 
General,  102. 

Binney,  Horace,  on  habeas  corpus 
privilege,   125  #.,   138. 

Bismarck,   dictatorship   of,   57. 

Blair,  Jacob  B.,  Representative 
from  Virginia,  464. 

Blair,  Montgomery,  on  West  Vir- 
ginia bill,  458;  and  postal  con- 
trol  of  newspapers,  501  ff. 

Blair,  S.  S.,  Congressman,  on  Con- 
federate belligerency,  70-71. 

Blatchford,  Richard  H.,  intrusted 
by  Lincoln  with  emergency 
funds,  37  n. 


Blockade,  proclamations  of,  49-50; 
legality  of,  in  Prize  Cases,  52  jj.; 
and  recognition  of  belligerency, 
69;  lifted  during  military  occu- 
pation of  South,  222;  Presi- 
dent's power  of,  374. 

Bogus  proclamation,  published  in 
New    York    World,    157  n. 

Bolivar,  Simon,  and  emancipation, 
375  n. 

Bollman  and  Swartwout  case, 
120,  133-134. 

Boone  County  (Missouri)  Stand- 
ard, 490-491. 

Boone  County,  (western)  Virginia, 
445. 

Booth  vs.  Town  of  Woodbury, 
249  n. 

Border  States,  and  compensated 
emancipation,  366;  claim  com- 
pensation for  slaves,  402-404. 

Border-State  governors,  liability 
of,  419. 

Boreman,  A.  I.,  Governor  of  West 
Virginia,  seeks  to  cheer  Pier- 
point,  462. 

Boston,  jury  trial  in  connection 
with  "massacre"  of  1770,   142  n. 

Bounties,  249,  250. 

Bowdoin  College,  475. 

Bradley    vs.   Fisher,   203. 

Bragg  vs.  Lorio,  284  n. 

Bramlette,  T.  E.,  Governor  of 
Kentucky,  196. 

Breckinridge,  J.  C,  and  Davis' 
indictment,  111;  property  con- 
fiscable, 282. 

British  debts,  confiscation  of,  dur- 
ing American  Revolution,  300. 

Brooke  Co.,  (western)  Virginia, 
448. 

Brown,  Wm.  G.,  Representative 
from  Virginia,  464. 

Brown  vs.  United  States,  299  and 
n.,  300,  304,  305. 

Browning,  Orville  H.,  Senator 
from  Ilhnois,  debate  with 
Sumner  on  war  powers,  41-43; 
and  indemnity  bill,  212  n.;  op- 
poses confiscation,  277;   advises 


552 


INDEX 


Lincoln  to  veto  confiscation  bill, 
279;  conversation  with  Lincoln 
regarding  power  over  slavery, 
351  n.;  an  appointment  of  gen- 
erals from  Illinois,  412  n.;  visits 
Rhode  Island  encampment, 
413  n.;  mentions  Lincoln's  dis- 
tress at  West  Virginia  bill, 
460  n.;  diary,  547. 

Brownlow,  W.  G.,  Governor  of 
Tennessee,  on  State  emancipa- 
tion, 389  n. 

Buchanan,  James,  on  conscription, 
271 7i. 

Burlamaqui,  J.  J.,  on  confiscation, 
298. 

Burnside,  General  A.  E.,  and  Val- 
landigham  case,  176-177;  and 
suppression  of  Chicago  Times, 
493-496;    mentioned,  485. 

Burr,  Aaron,  case  of,  in  relation  to 
the  law  of  treason,  76;  con- 
spiracy,  127,   145  and  n. 

Burton,  General  Henry  S.,  in 
charge  of  Davis,  108. 

Bushwacking,  174,  195  n.,  447, 
521. 

Butler,  General  Benj.  F.,  causes 
execution  of  Mumford,  91,  227; 
urges  criminal  liabihty  of  Lee's 
officers  and  men,  101 ;  uses  mili- 
tary pressure  in  defiance  of  civil 
authority,  148;  and  provost 
court  for  New  Orleans,  225,  233; 
official  title  in  Louisiana,  228; 
declared  an  outlaw,  227«..;  at 
New  Orleans,  227  n.;  sequesters 
property,  223  71.;  enforces  con- 
fiscation acts  in  Louisiana, 
283  n.;  and  negroes  as  "contra- 
band," 354-355;  controls  negro 
affairs,  381-382;  quarrel  with 
Governor  Andrew,  415-416;  con- 
troversy with  government  under 
Pierpoint,  466-469 ;  mentioned, 
485. 

Butler,  Pierce,  controversy  with 
Cameron,  188. 

Bynkcrshoek,  C.  van,  on  confisca- 
tion, 298. 


Cabelx,  County,  (western)  Vir- 
ginia, 441  n.,  445,  446. 

Cabinet  oflicers,  suits  against,  188- 
189;   indemnification  of,  191. 

Cabinet.  Hcc  Lincoln's  Cabi- 
net. 

Cadwallader,  General  George,  and 
Merry  man   case,   161. 

Cadwallader,    Justice,    92-93. 

Calhoun  County,  (western)  Vir- 
ginia, 445. 

California,  arrest  in,  194. 

Cambria  County,  Pennsylvania, 
conspiracy  cases,  90. 

Cameron,  Simon,  Secretary  of 
War,  controversy  with  Pierce 
Butler,  188;  discourages  recruit- 
ing, 413  and  n.;  and  Butler- 
Andrew  controversy,  415;  1861 
report  of,  417. 

Campbell,  John  A.,  relations  with 
Confederate  Commissioners,  63; 
imprisonment,  103  ri.;  property 
seized,  283  n. 

Canada,  conscription  in,  240. 

Cannon,  William,  Governor  of 
Delaware,  urges  emancipation, 
390. 

Capital  Traction  Co.  vs.  Hof, 
212  n. 

Captured  and  Abandoned  Prop- 
erty Act,  323-328;  as  a  penal 
measure,  224;  enforcement  of, 
Z2ofj.;  and  restoration  of  prop- 
erty, 335  #. 

Carlile,  J.  S.,  Senator  from  re- 
stored Virginia,  opposes  confis- 
cation, 277;  on  emancipation, 
350;  chosen,  451;  on  making  of 
West  Virginia's  constitution, 
45271.;  admission  to  Senate, 
454;  votes  against  new  State, 
456. 

Censorship,  tentative  steps  toward, 
481//.;  lack  of,  in  Civil  War, 
508,  520.  See  also  newspapers, 
freedom  of  press. 

Certiorari,  in  Vallandigham  case, 
178. 

Chafee,  Zechariah,  528. 


INDEX 


653 


Chandler,  L.  H.,  in  Davis  case, 
107,  109. 

Charge  to  Grand  Jury,  In  re,  60  n. 

Chartist  disturbances,  143. 

Chase,  Salmon  P.,  opinion  as  to 
trial  of  Davis,  112  n.;  appre- 
hended decision  on  habeas  cor- 
pus question,  132;  dissents  in 
Milligan  case,  133,  182;  as  to 
circuit  duties  of  Supreme  Court 
members  in  war  time,  234;  on 
West  Virginia  bill,  457;  men- 
tioned, 222. 

Chase,  Samuel,  Justice,  in  Ware 
vs.  Hylton,  305. 

Cherokee  Nation  vs.  Georgia,  10. 

Chester  (Illinois)  Picket  Guard 
attacked,  509 n. 

Chicago  Times,  reveals  military 
information,  486;  attacks  Lin- 
coln, 488;  suppression  of,  493- 
496,  507. 

Chicago    Tribune,    106. 

Churches,  military  control  or  in- 
terference,  148,   155,  226  and  n. 

Citizenship,  in  relation  to  the 
draft,  266  ff. 

Civil  government,  and  martial 
law,  226  n.;  under  military 
control  in  Tennessee,  228. 

Civil  war,  and  constitutional 
guarantees,  209. 

Civil  War,  American,  purpose  of, 
as  expressed  in  Crittenden  reso- 
lution, 352;  secession,  12-24; 
laws  of  warfare  promulgated, 
27;  war  powers,  25-47;  leniency, 
47;  legal  nature,  48-73;  begin- 
ning and  end,  49-50,  54,  339; 
construed  as  insurrection,  62; 
not  distinguishable  from  regular 
war,  66;  dual  character,  69-73, 
224,  515  71.;  treason,  74-95; 
treatment  of  confederate  lead- 
ers, 96-117;  experience  as  to 
habeas  corpus  privilege,  118-139 
(esp.  131  ff.) ;  relation  of  mili- 
tary to  civil  authority,  147  jj.; 
arbitrary  arrests,  149^.;  martial 
law  and   military   coxamissions. 


169-185;  liability  of  Federal 
officers  and  the  indemnity  act, 
186-214;  occupation  of  the 
South,  215-238;  conscription, 
239-274;  confiscation  and  resto- 
ration of  property,  275-341 ; 
emancipation,  342-404 ;  State 
and  Federal  relations,  405-432; 
partition  of  Virginia,  433-476; 
freedom  of  speech  and  of  the 
press,  477-512;  summary,  511- 
522;  relation  to  later  costitu- 
tional  history,  522-523;  lack  of 
legal  precision,  515;  legal  eccen- 
tricities, 521 ;  compared  with 
World  War,  523-530. 

Clarksburg,  West  Virginia,  prose- 
cutions for  disloyalty,  89; 
Unionist  mass  meeting,  438. 

Clay,  C.  C,  92,  103  n. 

Clearfield  County,  Pennsylvania, 
conspiracy  cases,  in,  90. 

Cleveland,  Grover,  vetoes  bill  for 
refunding  direct  tax,  424. 

Cleveland,  Ohio,  indictments  for 
conspiracy,  etc.,  85;  habeas 
corpus  cases,  257  n. 

Clifford,  J.  H.,  government  coun- 
sel in  Davis  case,  107  n. 

Clifford,  Nathan,  Justice,  on  Con- 
federate belhgerency,  65;  Dis- 
sents in  Miller  vs.  United  States, 
314. 

Cochrane,  Lord,  British  Admiral, 
and  deportation  of  slaves,  344- 
345. 

Cockburn's  charge  to  Jurj', 
144  n. 

Codazzi,  Agostino,  on  emancipa- 
tion in  Venezuela,  375  n. 

Coke,  Sir  Edward,  on  executive 
imprisonment,  125. 

Cole,  A.  C,  185  n. 

Coleman  vs.  Tennessee,  144  n., 
236,  230. 

Colfax,   Schuyler,    190. 

Colombia,  emancipation  in,  375  n. 

Colorado,  treason  indictments  in, 
85;  martial  law  in,  146. 

Columbia,  Missouri,  490-491. 


554 


INDEX 


Columbus  (Ohio)   Crisis,  46. 

Commander-in-Chief,  of  miUtia, 
420. 

Commander-in-Chief,  of  the 
Army.     See  President. 

Committee  on  Conduct  of  the 
War,  44,  529  n. 

Committee  on  PubUc  Information, 
528  n. 

Committees  of  Safety,  in  western 
Virginia,  440. 

Common  law,  and  liability  of  the 
soldier,  142  n.;  referred  to  in 
Seventh  Amendment,  211;  in 
relation  to  confiscation,  285  and 
n.;  and  restoration  of  property, 
336. 

Commonwealth  vs.  Holland,  195  n. 

Compensation  for  slaves.  See 
emancipation. 

Conduct  of  the  War,  Committee 
on,  44,  529  n. 

Confederacy,  sympathy  abroad, 
18;  States  declared  in  insurrec- 
tion, 50  7^.;  commissioners  sent 
to  Washington,  63;  recognition 
avoided,  63-65;  belligerency,  65- 
73;  naval  crews  as  pirates,  65; 
letters  of  marque  and  reprisal, 
65;  and  treason,  66;  treatment 
by  United  States  summarized, 
67;  as  de  facto  government,  68; 
adherents  not  punished  under 
Federal  treason  law,  77,  81 ; 
policy  as  to  hostages,  157;  mili- 
tary occupation  of  its  territory, 
215  #.;  States  of,  not  repre- 
sented in  Federal  Congress, 
223  n.;  double  status  theory, 
224;  debt  extinguished,  238 n.; 
and  question  of  "state  succes- 
sion," 238  n.;  its  territory  passed 
through  various  governmental 
stages,  237^.;  its  inhabitants 
treated  as  enemies,  325;  States 
analyzed  as  to  ratification  of 
Thirteenth  Amendment,  397- 
398;  problems  as  to  conscription 
similar  to  those  of  United 
States,  429  n.;  Virginia's  agree- 


ment with,  438.  See  also 
Northwest  Confederacy,  pri- 
vateers, Jefferson  Davis,  legal 
nature  of  the  Civil  War. 

Confederate  Act  of  Sequestration, 
302  n. 

Confederate  Government,  property 
of,  seized,  291  n.;  and  capture 
of  cotton,  325;  validity  of, 
partly   recognized,   237  n. 

Confederate  leaders,  treatment 
after  the  war,  96-117;  liability 
for  treason,  98  ff.;  resolutions  of 
State  legislatures,  100. 

Confederate  money,  contract  for 
payment  of,  enforceable  in 
Federal  court,  238  n. 

Confiscation,  as  penalty  for  rebel- 
lion, 69;  debate  on,  69  j^.;  mili- 
tary action,  148;  policy  of,  275- 
292;  right  of,  293-315;  restora- 
tion, 316-341 ;  by  Confederacy, 
275-276;  process  of,  281  j?.;  com- 
mon law  remedy  in,  285  and  n.; 
duration  of  the  forfeiture  286- 
288;  extent  of,  288  J^.;  financial 
results,  289-292;  punitive  char- 
acter of,  295  n.,  307;  as  a  belli- 
gerent right,  294-306,  324;  of 
debts,  284,  303-306;  views  of 
American  jurists,  300 ff.;  decrees 
on  default,  311-312;  in  interna- 
tional law,  313  n.;  and  direct 
tax,  317-323;  in  Captured  and 
Abandoned  Property  Act,  323- 
328;  after  the  war,  328  #.;  in  re- 
lation to  emancipation,  357-363. 
See  also  treason. 

Confiscation  Act  of  1861,  pp.  276, 
313;  decision  as  to  restoration  of 
property  seized  under,  333-335; 
and  Fremont's  emancipation  or- 
der, 354;  and  emancipation, 
357;  emancipating  clause  not 
enforced,  357  n. 

Confiscation  Act  of  1862,  308;  and 
punishment  of  treason,  79-81; 
Lincoln's  veto  message,  88; 
provisions,  276,  279  n.;  pro- 
ceedings  under,   278;    constitu- 


INDEX 


'555 


tionality  of,  279  n.,  313;  ex- 
planatory joint  resolution,  280; 
effect  of,  compared  to  that  of 
Federal  tax  forfeitures,  320;  and 
restoration,  334-335,  341 ;  puni- 
tive nature  of,  334;  and  emanci- 
pation, 358  ff.;  did  not  divest 
title,  362;  emancipating  clause 
not  enforced,  363  7i. 

Confiscation  acts,  applied  as  to 
occupied  parts  of  South,  223  n.; 
enforcement,  282  ff.;  military 
efforts  to  enforce,  283;  applica- 
tion in  the  courts,  286  j^. 

Confiscation  Cases,  The,  307  n. 

Congress,  war  powers,  28-30,  41-44; 
power  of  making  rules  for  army 
and  na\'y  assumed  by  the  Presi- 
dent, 38;  confers  power  upon 
the  President,  39;  Sumner- 
Browning  debate  concerning  war 
powers  of,  41-43;  power  to  wage 
war,  42;  enumeration  of  powers 
exercised  during  Civil  War, 
43-44;  has  exclusive  power  of 
declaring  war,  54;  act  of  July 
13,  1861,  declaring  insurrection, 
50  n.,  54,  55 ;  act  of  August  6, 
1861,  approving  President's  acts, 
55;  powers  of,  in  relation  to  Lin- 
coln's extraordinary  acts,  58; 
opposes  foreign  mediation,  64; 
Conspiracies  Act,  78;  Treason 
Act  of  1790,  p.  79;  Treason  Act 
of  1862,  pp.  80-81 ;  extra  session 
of  1861,  p.  123  72.;  power  to  sus- 
pend habeas  corpus  privilege, 
118-139;  delays  action  as  to  sus- 
pension, 128;  ratifies  President's 
course,  128;  act  of  1871  permit- 
ting suspension  of  habeas  cor- 
pus privilege,  135;  remits  Jack- 
son's fine,  145  n.;  removes  dis- 
abilities of  Confederates,  117  71.; 
act  of  1875  punishing  State 
judges  held  constitutional, 
204  71.;  clause  of  Indemnity  Act 
declared  unconstitutional,  212  fj.; 
authority  over  the  South,  220; 
representation    of   Virginia   and 


Tennessee  during  the  war,  223  n., 
463-400;  ratifies  President's 
acts,  214;  Militia  Act  of  1862, 
p.  244;  cannot  delegate  power 
to  President,  256;  powers  as  to 
militia  delinquents  in  relation  to 
those  of  State  legislatures, 
258  71.;  act  in  favor  of  the 
conscientious  objector  (1864), 
262-263;  Conscription  Act  of 
1863,  p.  247  j5^.;  act  of  February 
24,  1S64,  regarding  drafting  of 
aliens,  268;  vote  on  conscription 
bill,  270  7i.;  power  to  declare  war 
involves  conscription,  272 ;  power 
of  conscription  upheld  by 
Supreme  Court,  274;  confiscation 
acts,  276  j5^.;  repeals  section  giv- 
ing President  power  to  pardon 
those  engaging  in  rebellion, 
279  n.;  right  of  confiscation, 
301 ;  power  as  to  confiscation, 
314;  compensates  Lee  heirs  for 
Arlington,  322;  reimburses  States 
for  direct  tax,  322,  423;  Cap- 
tured and  Abandoned  Property 
Act,  323 jf.;  debate  as  to  inter- 
ference with  slavery,  376;  power 
over  slavery,  3i8jf.;  350,  373  71., 
377;  on  nature  and  purpose  of 
Civil  War,  352;  emancipating 
measures,  357-365;  resolution  on 
compensated  emancipation,  366, 
403;  bills  to  compensate  Mis- 
souri slaveholders,  366;  creates 
Freedmen's  Bureau,  382;  pro- 
posals on  Emancipation  Procla- 
mation, 383  and  n.;  functions  as 
to  amending  the  Constitution, 
396,  400  n.;  West  Virginia  bill, 
454-456;  election  of  members 
prohibited  in  Virginia,  464 n.; 
inconsistent  attitude  toward 
restored  government  of  Virginia, 
466;  remits  Lyon's  fine,  480; 
attempts  to  assume  presidential 
functions,  529  and  n.  See  also 
House  of  Representatives,  Sen- 
ate. For  committees  of  Con- 
gress see   Judiciary   Committee 


556 


INDEX 


of  the  House  of  Representa^ 
lives,  etc. 

Conquest.  See  military  occupa- 
tion. 

Conscientious  objectors,  260-263, 
528-529. 

Conscription,  used  by  States  dur- 
ing Revolution,  240  and  n.;  by 
presidential  authority  in  1862, 
37,  245;  and  habeas  corptis  writ, 
428-429;  in  relation  to  State  and 
Federal  judicial  conflicts,  429; 
Civil  War  e.xperience  compared 
to  that  of  World  War,  528.  See 
also  draft. 

CoiLscription  Act  of  1863,  de- 
nounced as  unconstitutional, 
11;  and  disloyal  practices,  81, 
90;  nature  and  provisions, 
247  j9^.;  commutation  clause,  248 
and  n.;  enforcement,  250  jj.; 
provision  as  to  aliens,  266;  con- 
stitutionality, 259,  268-274. 

Conscription,   cases   on,   270  n. 

Conspiracies  Act  of  1861,  pp.  78, 
90;  use  of,  under  Wilson,  526. 

Conspiracy,  defined,  77;  indict- 
ments for,  85. 

Constitution  of  the  United  States, 
economic  interpretation,  3;  not 
a  mere  document,  5;  "made  by 
the  States,"  13;  "supreme  law" 
clause,  14;  State  reservations  at 
time  of  ratification,  15-16;  pro- 
hibition on  State  compacts, 
24  n.;  and  war  powers,  28  j^.; 
pacific  spirit,  30;  provides  for 
war,  31-32;  not  applicable  to 
enemy,  43;  provisions  regarding 
insurrection,  61-62;  provision 
regarding  habeas  corpus,  119; 
knows  no  political  cause  of  im- 
prisonment, 135;  provides  for 
military  as  well  as  civil  gov- 
ernment, 182;  Seventh  Amend- 
ment violated,  211;  provision 
as  to  Federal  judicial  power, 
233;  guarantee  clause,  235  ;(f.; 
and  conscription,  268-274;  at- 
tainder   clause,    278;    preamble 


not  a  grant  of  power,  348;  and 
war  power  over  slavery,  348- 
351 ;  delegated  powers,  349 ;  in 
relation  to  Emancipation  Proc- 
lamation, 373;  amending  process, 
391  Jj.;  "unamendable"  parts, 
394  and  n.;  binding  upon  State 
judges,  430;  supreme  law  clause 
interpreted,  430-431 ;  Thaddeus 
Stevens  on,  455-456;  applies 
during  war,  515  n.;  not  sub- 
verted, 522;  on  freedom  of 
speech  and  of  the  press,  478. 

Constitutional  convention,  econo- 
mic interests  of  members,  3n.; 
State  rights  party,  21. 

Constitutional  history,  relation  to 
social   history,   2ff. 

Constitutional  orthodoxy,  8. 

Contempt,    158. 

Continental  Congress,  Articles  of 
War,  141  n.;  mentioned,  247  71. 

Contraband,  fugitive  slaves  so 
designated,  354-355. 

Cooper,  George  E.,  Davis'  sur- 
geon, 104  71. 

Copperhead  newspapers,  509.  See 
also  disloyalty. 

Corning,  Erastus,  Lincoln's  letter 
to,  184  71. 

Corwin,  E.  S.,  365  71. 

Cotton,  not  included  within 
exemption  as  to  military  cap- 
tures, 324.  Sec  also  Captured 
and  Abandoned  Property  Act. 

Coupland,  Ex  parte,  271  n. 

Court  decisions,  precautions  in  his- 
torical study,  8. 

Court  of  Claims,  and  restitution 
of  direct  tax  forfeitures,  323; 
and  restoration  of  captured 
property,  336-338. 

Courts,  and  "war  mind,"  11;  spe- 
cial war  courts,  40;  provost 
court  at  New  Orleans,  40;  pro- 
visional court  of  Louisiana,  41 ; 
of  Tennessee  during  military  oc- 
cupation, 230  71.;  conflict  of 
State  and  Federal,  428  jd'. 

Courts,  civil,  fail  to  suppress  dis- 


INDEX 


557 


loyalty,  83;  relation  to  courts- 
martial,  141  n.;  relation  to  mili- 
tary officers,  158  jj.;  and  martial 
law,  173;  right  to  set  aside 
sentence  of  military  commission 
upheld  in  Milligan  case,  180^.; 
relation  to  military  occupant, 
217;  used  to  relieve  drafted 
persons,  256-257;  and  emanci- 
pating feature  of  Confiscation 
Acts,  360  jJ.;  and  journalistic 
disloyalty,  504-505;  did  not  con- 
trol emergency,  518;  use  of, 
under  Wilson,  527.  See  also 
Judiciary  Act,  Supreme  Court, 
courts-martial.  King's  Bench, 
Court  of  Claims. 

Courts,  Federal,  in  occupied  parts 
of'South,  229. 

Courts-martial,  authority  of,  141; 
and  trial  of  Louallier  at  New 
Orleans,  145  n.;  and  disloyalty, 
154?;..;  employed  during  military 
occupation,  217,  230;  suggested 
for  recalcitrant  State  governors, 
419  j5^.;  and  news  control,  490, 
507. 

Courts,  State,  function  of  declar- 
ing Federal  laws  unconstitu- 
tional, 430. 

Crifds,     The     (Columbus,     Ohio), 

Crittenden,  J.  J.,  Senator  from 
Kentucky,  on  West  Virginia 
bill,  455. 

Cross  vs.  Harrison,  72  n. 


D.AM.-iGE  Suits,  brought  against 
Unionists,  331 ;  proposal  that 
Government  should  assume, 
206.     See    also   Indemnity    Act. 

Dana,  R.  H.,  Jr.,  on  Prize  Cases, 
52  n.;  Government  counsel  in 
Davis  case,  107  jJ.;  on  Four- 
teenth Amendment  in  relation 
to  Davis  case,  112  m.;  on  folly 
of  prosecuting  Davis,  113-115; 
on  legal  effect  of  Emancipation 
Proclamation,  383-384,  384  n. 

Davis,  David,  Justice,  opinion  in 


Milligan  case,  181 ;  dissents  in 
Miller  vs.  United  States,  314. 

Davis,  Garrett,  Senator  from  Ken- 
tucky, opposes  summary  arrest, 
81;  on  confiscation,  294  n.;  on 
power  of  Congress  over  slavery, 
350. 

Davis,  Jefferson,  on  constitution- 
ality of  secession,  13;  on  treat- 
ment of  Confederates  as  pirates, 
66  n.;  treatment  by  the  Govern- 
ment after  the  war,  103-117; 
Johnson's  attitude  toward,  97  n.; 
resolution  of  Kentucky  legis- 
lature, 107;  indictment,  109- 
111;  released,  116;  declares 
Butler  an  outlaw,  227  n.;  death 
reported,  485  n.;  Lee's  dis- 
patches to,  487. 

Davis,  Mrs.  Jefferson,  104  n. 

Dayton,  W.  L.,  United  States 
minister  to   France,  64  n. 

Debts,  Confiscation  of,  during 
American  Revolution,  300,  306; 
during  Civil  War,  303-306;  Con- 
federate sequestration  law,  303; 
balance  of  indebtedness  unfa- 
vorable to  South,  303. 

De  facto  government,  and  Con- 
federacy, 68. 

Default,  and  confiscation,  311-312, 
314. 

Delaware,  martial  law,  in,  170; 
proceeds  from  confiscation,  289; 
free  negroes  in,  386;  action  as  to 
slavery,  388-390. 

Democracy  at  stake,  1  n.,  529-530. 

Denison,  George  S.,  as  Treasury 
agent  in  South,  222. 

Desertion,  to  obtain  bounties,  250; 
and  draft  delinquency,  258,  259. 

Dicey,  A.  V.,  511. 

Dictatorship,  of  Lincoln,  55  jJ'.;  of 
Bismarck,  57. 

Direct  tax  of  1861,  in  South,  222, 
224,  317-323;  apportionment  and 
collection,  423;  revenue  ob- 
tained, 423;  reimbursement  of 
the  States,  322,  423-424;  quota 
not  assumed  by  "restored  gov- 


558 


INDEX 


ernment"  of  Virginia,  453  n.; 
mentioned,  406. 

Disloyal  societies,  83. 

Disloyalty,  in  relation  to  treason, 
81 ;  in  relation  to  conscription, 
81 ;  as  dealt  with  by  the  Lincoln 
administration,  82  JJ.;  judicial 
prosecution  compared  to  sum- 
mary methods,  94;  arrests  for, 
150  JJ.;  imprisonment  for,  176; 
problem  of,  in  World  War,  com- 
pared to  that  of  Civil  War,  525- 
528;  laws  against,  under  Wilson, 
626-527.  See  also  newspapers, 
treason,  conspiracy,  draft. 

District  of  Columbia,  martial  law 
in,  170;  emancipation  in,  365. 

Dix,  General  John  A.,  intrusted 
with  emergency  funds,  37  n.; 
and  suppression  of  New  York 
World,  496-499;  mentioned,  151. 

Dodge  vs.  Woolsey,  24  n. 

Dole  vs.  Merchant's  Insurance 
Co.,  72  n. 

Double  status  theory  of  Civil 
War,  69  ff.,  224,  515  n.,  516-517. 

Draft,  resistance  to,  81 ;  officers 
annoyed  by  judicial  process, 
158;  of  300,000  in  1862,  245; 
riot  in  New  York,  251.  See  also 
conscription. 

Dred  Scott  case,  and  citizenship, 
267;  and  slavery  in  territories, 
365  n.;  Lincoln's  attitude  on, 
351  n. 

Druecker  vs.  Salomon,  251  n., 
255,  270  n. 

Drummond,  Judge,  and  suppres- 
sion of  Cliicago  Times,  494. 

Dual  status,  of  Confederates.  See 
double  status  theory. 

Dublin,  Ireland,  case  of  Wolfe 
Toneat,  143. 

Due  process  of  law,  and  confisca- 
tion, 314-315;  and  emancipa- 
tion, 365  7J. 

Dunmore,  Lord,  and  emancipa- 
tion, 343-344. 

Dunning,  William  A.,  167,  295 «. 

Dynes  vs.  Hoover,  141 71. 


Eastern  Shore  of  Virginu,  453, 
464. 

Eckenrode,  H.  J.,  on  reconstruc- 
tion in  Virginia,  466  n. 

Editors,  responsibility  of,  480; 
military  trial,  490;  arrest  of, 
502-504. 

Eleventh  Amendment,  395  n. 

Elliot,  T.  D.,  Congressman  from 
Massachusetts,  on  traitors,  70. 

Ellis,  E.  J.,  tried  by  military 
commission,  490-491. 

Ely,  Alfred,  157. 

Emancipation,  steps  toward,  342- 
370;  completed,  371-404;  belli- 
gerent right  of,  343-347;  in  rela- 
tion to  confiscation,  357-363; 
compensation  scheme,  365-370, 
523;  by  State  action,  388-390; 
general  considerations  as  to  lack 
of  compensation,  401  ff. 

Emancipation  policy  criticized, 
487. 

Emancipation  Proclamation  (pre- 
liminary), 371-372. 

Emancipation  Proclamation 
(final),  issued,  372-373;  excepted 
portions,  372  and  n.;  legal  basis, 
373  jJ.;  legal  effect  and  validity, 
378-385;  origin  credited  to  J.  Q. 
Adams,  344;  and  Confiscation 
Act  of  1862,  361 ;  did  not  involve 
abandonment  of  compensation 
scheme,  367;  judicially  applied, 

382  71.;   considered   in   Congress, 

383  71.;  condemned  by  Delaware 
legislature,  389. 

Eminent  domain  in  relation  to 
emancipation,  348  and  n. 

Enemy  property.  See  confisca- 
tion, military  capture,  Trading 
with  Enemy  Act,  Alien  Prop- 
erty Custodian. 

Enemy  status,  of  Confederacy,  65- 
73. 

Enemy  territory,  inhabitants  of, 
325. 

England,  Mutiny  Act,  38-39;  De- 
fense of  the  Realm  Act  of  1914, 
45;     Queen's     proclamation     of 


INDEX 


559 


neutrality,  63,  65;  suspension  of 
habeas  corpus  privilege,  125  Jj.; 
military  rule,  140  J^.;  martial 
law,  143,  146  n.;  conscription, 
239  and  n.,  240;  policy  as  to 
confiscation  of  debts,  305;  and 
deportation  of  slaves,  344 ;  action 
as  to  compensated  emancipa- 
tion, 401 ;  law  of  seditious  libel, 
481. 

English  constitution,  and  the  rule 
of  law.  512. 

Enrollment  bureaus,  249. 

Enticing  to  desert,  90. 

Espionage  act,  none  passed  in 
Civil  War,  520. 

Espionage  Act  of  1917,  526-528. 

Espionage  acts  of  the  States,  529  n. 

Etat  de  siege,  146. 

Eufaula,  Ala,  and  confiscation, 
309. 

Evarts,  Wm.  M.,  special  counsel 
in  Davis  case,  107;  mentioned, 
113. 

Ewing,  General  Hugh,  conflict 
with  civil  authority  in  Kentucky, 
148. 

Ewing,  General  Thomas,  Jr.,  de- 
clares martial  law,  170. 

Examiner  of  State  claims,  427. 

Executive  discretion,  and  Militia 
Act  of  1862,  p.  252. 

Exemption.  See  conscription, 
conscientious    objectors,    etc. 

Ex  -parte  hearings  in  confiscation 
cases,  281,  285,  312. 

Expatriation,  264. 

Ex  post  facto,  in  relation  to  pun- 
ishment of  Confederate  leaders, 
112  n.;  and  Indemnity  Act, 
20\  ff. 

Extradition,  act  of  1793,  420-421. 

Extra-legal  measures  of  punish- 
ment, 527. 


Fain,  W.  P.,  160. 
Fairfax  County,  Virginia,  446. 
False    imprisonment,    liability    of 
governmental   officers  for,   187. 


Faulkner,  Charles  J.,   157. 

Featherstone  riots,  144  n. 

Federal  and  State  relations.  See 
State  and  Federal  relations. 

Federal  duties  of  State  governors, 
420  #. 

Federal  Government,  right  to 
coerce  a  State,  24;  relation  to 
restored  government  of  Vir- 
ginia, 453  ff.  See  also  Lincoln 
Cabinet,  President,  Congress, 
Supreme  Court,  State  and  Fed- 
eral relations. 

Federal  jurisdiction,  in  connection 
with  Indemnity  Act,  197  jj. 

Fenian  outrages,  143. 

Ferguson  vs.  Landram,  249  n., 
270  n.,  425. 

Field,  Stephen  J.,  Justice,  dis- 
sents in  Mitchell  vs.  Clark,  209- 
210;  in  Tyler  vs.  Defrees,  307 
n.,  315;  dissents  in  Miller  vs. 
United  States,  314. 

Fifield  vs.  Insurance  Company  of 
Pennsylvania,  69. 

Fifth  Amendment,  43,  182,  365 n.; 
and  confiscation,  313,  314. 

Filibuster.     See    Indemnity   Act. 

Financial  affairs.  See  State  and 
Federal  relations. 

First  Amendment,  478,  506.  See 
also  freedom  of  speech. 

Fishback,  Charles,  view  as  to 
offending  newspapers,   509  n. 

Fleming  vs.  Page,  30  n.,  220  n. 

Fletcher  vs.  Peck,  24  n. 

Florida,  blockaded,  50;  confisca- 
tion in,  330;  Hunter's  order 
regarding  emancipation  in,  354; 
reconstruction  of,  398. 

Floyd,  John  B.,  indicted  for 
treason,  85. 

Ford  vs.  Surget,  65  n,.;  67,  68. 

Forfeiture,  duration  of,  286-288, 
334-335. 

Forfeiture  of  property.  See  direct 
tax  of  1861. 

Forrest,  French,  property  confis- 
cated, 286. 

Fort  Lafayette,  155. 


560 


INDEX 


Fort  McHenry,  155,  161. 

Fort  Pillow   massacre,   106. 

Fort  Warren,  157. 

Fortress    Monroe,   355. 

Fourteenth  Amendment,  in  rela- 
tion to  Davis  case,  llljj'-/  ap- 
plied during  World  War,  113  n.; 
disabilities  removed,  117  n.;  in 
relations  to  conscription,  274; 
prohibits  compensation  to  slave- 
holders, 404  n.;  recent  judicial 
interpretation,  523  and  n.;  men- 
tioned, 267. 

France,  proposes  mediation,  64; 
etat  de  siege,  146;  Revolu- 
tionary Tribunal,  153;  Mich- 
elet's  view  as  to  conscription 
in,  240;  sequestration  of  debts, 
305. 

Freedman's  Bureau,  courts  of, 
41 ;  and  restoration  of  property, 
336,  340;    mentioned,  381-382. 

Freedman's  Inquiry  Commission, 
376  n. 

Freedom  of  speech,  177-179. 

Fremont,  General  John  C,  and 
military  emancipation,   354. 

Fugitive  Slave  Acts,  suspended 
during  Civil  War,  355-357;  re- 
pealed, 357;  and  case  of  Able- 
man  vs.  Booth,  430. 


Gamble,  H.  R.,  Governor  of 
Missouri,  agreement  with  Lin- 
coln, 417,  454. 

Garner,  J.  W.,  303  n. 

GefTcken,  F.  H.,  on  confiscation, 
302  n. 

Gelston  vs.  Hoyt,  359. 

Georgia,  blockaded,  50;  assign- 
ment of  lands  to  freedmen,  340; 
Hunter's  order  regarding  eman- 
cipation, 354. 

German  immigration,  265. 

German  property,  treatment  of, 
302  n.,  313  7?..,  529  n.  See  aUo 
Trading  with  the  Enemy  Act. 

Germany,  war  powers,  25;  under 
martial  law,   146. 


Gettysburg,  Pennsylvania,  martial 
law  at  time  of  battle,  173. 

Ghent,  Treaty  of,  as  to  deported 
slaves,  344,   347. 

Gilmer  County,  (western)  Vir- 
ginia, 446. 

Gordon  riots,  143,  145. 

Go\ernment,  "under  law",  140, 
512. 

Governmental  officers,  liability 
of,  187  and  n. 

Governor.     See    State    governors. 

Grand  juries.  See  treason.  Habeas 
Corjms  Act  of  1863,  newspapers. 

Grant,  General  U.  S.,  opposes 
withdrawal  of  troops  to  sup- 
press draft  troubles,  251  n.;  on 
Lee's  surrender  in  its  relation 
to  prosecutions  for  treason,  101 ; 
suspends  habeas  corpus  priv- 
ilege, 135;  movements  revealed, 
485,  486;   mentioned,  463. 

Grant  vs.  Gould,   144 ;).,  146  n. 

Grapeshot,  The,  233  71. 

Greeley,  Horace,  generous  toward 
Davis,  106;  on  conscription, 
268/1. 

Gregory,  T.  W.,  Attorney  Gen- 
eral, organization  of  his  depart- 
ment,  525-526. 

Grier,  R.  C,  Justice,  opinion  in 
Prize  Cases,  53-54,  61  n.,  71-72; 
on  piracy  and  treason,  92-93. 

Griffin  vs.  Wilcox,  207. 

Griner  In  re,  254,  27071.. 

Grotius,  Hugo,  on  "mixed"  war, 
71;  on  confiscation,  297-298. 

Guarantee  clause  of  Constitution, 
235.1?. 

Guerillas,  195.  See  also  bush- 
wacking. 

Gurney,  Mrs.,  Lincoln's  letter  to, 
262  71. 


Habe.\s  Corpus,  118 jj.;  suspension 
discussed  under  Jefferson,  7; 
used  to  release  men  in  Federal 
army,  12;  and  war  powers,  29; 
and    insurrection,   62;    and   dis- 


INDEX 


661 


loyalty,  84;  and  Davis'  release, 
108 ;  controversy  concerning 
President's  power  of  suspension, 
118-139;  clause  in  Constitution, 
119;  debate  in  constitutional 
convention,  126;  suspension  in 
South  Carolina,  135;  present 
status  of  the  controversy,  136; 
in  relation  to  martial  law,  143; 
writ  served  upon  General  Jack- 
son, 145  n.;  in  relation  to 
arbitrary  arrests,  149  ff.;  158; 
limited  suspension,  149;  general 
suspension,  151-152;  in  Milligan 
case,  180;  in  Vallandigham  case, 
178;  in  relation  to  Indemnity 
Act,  186;  judge's  liability  for 
refusing  the  writ,  203;  suspen- 
sion not  incompatible  with 
remedies  for  private  injuries, 
210;  and  the  draft,  252,  256; 
used  by  State  judges  in  conflict 
with  Federal  jurisdiction,  428- 
432;  suspension  did  not  set  aside 
all  law,  520;  not  suspended  un- 
der Wilson,  526.  See  also:  In 
re   Hurst,  Ex  parte   Merryman. 

Habeas  Corpus  Act  of  1689  (Eng- 
lish), 125;  suspended  in  1817, 
143. 

Habeas  Corpus  Act  of  1863,  p.  130, 
137  n.,  163-168,  165  n.;  ineffec- 
tiveness, 166,  517-518;  and  Milli- 
gan case,  181.  See  also  Merry- 
man,    Indemnity    Act. 

Hague  conventions,  27. 

Hall,  A.  Oakley,  155,  497. 

Hall,  D.  A.,  and  General  Jackson, 
145  n. 

Hall,  W.  E.,  on  confiscation, 
302  n. 

Halleck,  General  H.  W.,  on  mar- 
tial law,  173;  asks  withdrawal 
of  troops  to  suppress  draft 
troubles,  251  n.;  on  belligerent 
right  of  emancipation,  347  n. 

Hamilton,  Alexander,  on  Consti- 
tution, 3. 

Hampton  Roads  Conference,  64, 
40371. 


Hare,  J.  I.  C,  142 n.;  on  effect  of 
Emancipation  Proclamation,  384. 

Harrison,  Burton  H.,  imprisoned, 
103  n. 

Hascall,  General,  494. 

Hay,  John,  comment  on  Thir- 
teenth Amendment  400  n. ;  on 
Butler's  "contraband"  order, 
355  n. 

Heffter,    on    confiscation,    302  n. 

Hickman  vs.  Jones,  et  al.,  63. 

Hill,  Ex  parte,  271  n.,  429. 

Hilton  vs.  Guyot,  27  7i. 

Holt,  Joseph,  Judge  Advocate 
General,  gives  report  as  to  lists 
of  political  prisoners,  167;  on 
military  commissions,  174 ; 
argument  in  Vallandigham  case, 
179;  and  emancipation  by  mili- 
tary authority,  361 ;  opinion  on 
Postmaster's  exclusion  of  news- 
papers, 502. 

Horn   vs.   Lockhart,   237  n. 

Hostages,   66,    157,   226  n. 

Hot  pursuit,  right  of,  in  connec- 
tion with  Canadian  activities  of 
dislo3^al  societies,  83. 

House  of  Representatives,  in- 
vestigates Lincoln's  assassina- 
tion, 103-104;  report  on  exclu- 
sion of  Victor  L.  Berger,  113  71.; 
and  habeas  corpus  bill,  129; 
indemnity  bill,  190;  vote  on 
conscription,  270  n.;  and  restora- 
tion of  property,  340;  passes 
bill  to  compensate  Missouri 
slaveholders,  366;  debate  on 
interference  with  slavery,  376. 
See  also  Committee  on  War 
Claims,  Judiciary  Committee, 
etc. 

Houston  vs.  Moore,  258. 

Ho\ey,  General  Alvin  P.,  in  Mil- 
ligan case,  180;  mentioned, 
226  71. 

Howard,  (implicated  in  "bogus 
proclamation"),   157  71. 

Howard,  F.  Key,  arrest  of,  503- 
504. 

Howard,  Jacob  M.,  Senator  from 


562 


INDEX 


Michigan,  on  traitors,  69;  on 
reconstruction,   400  n. 

Howard,  General  0.  O.,  340. 

Howe,  Timothy  0.,  Senator  from 
Wisconsin,  remarks  on  habeas 
corpus  bill,  130. 

Hughes,  Charles  E.,  on  war 
powers,  32;  on  augmentation  of 
President's  power  through  con- 
gressional action,  39. 

Humphries,  West  H.,  impeached 
for  treason,  91. 

Hunter,  General  David,  on  Fed- 
eral tax  in  South,  318  n.;  order 
as  to  military  emancipation, 
354. 

Hunter,  R.  M.  T.,  seat  in  Senate 
vacated,  451. 

Hurst,  In  re,  195  n. 


Ilunois,  Copperhead  legislature, 
82.    See  also  Yates. 

Illinois  Central  R.  R.  vs.  Bos- 
worth,  288  7?. 

Inalienable  allegiance,  264. 

Indemnity  Act  of  1863  (referred 
to  also  as  Habeas  Corpus  Act), 
general  discussion,  186-214; 
passage  in  Congress,  189-193; 
use  of  the  name,  189  n.;  appli- 

.. cation  in  courts,  193^.;  defied 
by  States,  193-199;  amended  in 
1866,  198;  retroactive  feature, 
201  j5^.;  in  relation  to  judicial 
remedies,  204  j^.;  constitution- 
ahty  of,  206 #.;  held  to  be  in 
violation  of  Seventh  Amend- 
ment, 211-214;  in  relation  to 
suppression  of  New  York 
World,  498-499;  denounced  as 
unconstitutional,  499. 

Indemnity,  bills  of,  in  England, 
188  n. 

Indiana,  partisan  quarrels,  11; 
disloyalty  in,  82;  judicial  op- 
position to  Lincoln  administra- 
tion, 207;  conscription  in,  37, 
246,  251  and  n.,  260;  proceeds 
from  confiscation,  289;      finan- 


cial crisis  and  Federal  aid,  426; 
interference  with  newspapers  in, 
494-495.     See   also   Milligan. 

Indianapolis,  indictments  for  con- 
spiracy, etc.,  85;  information  in 
Federal  court  records  as  to  poli- 
tical prisoners,  166  n.;  arrest  of 
Milligan,  180;  confiscation  cases, 
288  n.  See  also  Griffin  vs.  Wil- 
cox. 

Indianapolis  Sentinel,  criticizes 
the  Government,  489. 

Indians,  provisions  for,  in  district 
of  Maine,  475. 

Indictments.  See  Irca-^on,  Jeffer- 
son Davis,  conspiracy,  news- 
papers, etc. 

Injunction,  256. 

In  rem.    See  proceedings  in  rem. 

Insurrection,  defined,  60;  in 
United  States,  61 ;  in  relation  to 
treason,  61,  76;  proclaimed  by 
Lincoln,  62;  suppression  of,  not 
a  judicial  function,  160;  does 
not  loosen  bonds  of  society, 
237  n. 

Insurrectionary  States,  collection 
of  direct  tax  in,  317-323. 

Insurrectionary'  theor>'  of  the  Civil 
War,  announced  by  Lincoln,  62; 
stated  by  Supreme  Court,  63; 
further  discussed,  63-73. 

Inter  amia  silent  leges,  350. 

Interior,  Department  of,  duties  as 
to  judicial  prosecutions,  161  n. 

International  law,  on  piracy,  66; 
as  to  military  occupation,  215- 
218,  236;  basis  of  Federal  rights 
in  the  South,  218;  principle  of 
"state  succession"  not  applicable 
to  Confederacy,  238 n.;  as  to 
confiscation,  294-306,  313  n.;  a 
part  of  our  law,  27  n.,  296  and 
n.;  as  to  belligerent  right  of 
emancipation,  343-347 ;  and 
Emancipation  Proclamation,  374. 

Ireland,  martial  law,  143;  con- 
scription not  applied,  240. 

Irons,  Daniel,  case  of,  257. 

Ironton,  Ohio,  445. 


INDEX 


563 


Jackson,  Andrew,  declares  mar- 
tial law  in  New  Orleans,  145 
and  n.;  administration,  and  ex- 
clusion of  printed  matter  from 
the  mails,  501. 

Jacobite  rebellions,  143. 

Jay's  Treaty,  on  confiscation  of 
debts,  306. 

Jecker  vs.  Montgomery,  309  n. 

Jeffers  vs.  Fair,  271  n. 

Jefferson  County,  (western)  Vir- 
ginia, 475;  annexation  to  West 
Virginia  contested,  469-472. 

Jefferson,  Thomas,   187  n. 

Jenkins  vs.  Collard,  288  n. 

Johnson,  Andrew,  application  to 
enjoin,  9n.;  follow  Lincoln's 
policy,  96-97;  attitude  toward 
Davis,  97  n. ;  urges  punishment 
of  "traitors,"  100;  proclaims  re- 
ward for  Davis'  arrest,  103; 
Cabinet  discussion  regarding 
Davis'  trial,  105;  indorsement 
on  Dana's  letter  regarding 
Davis,  113  71.;  abolishes  martial 
law  in  Kentucky,  172;  recruits 
for  Federal  army  in  Tennessee, 
222;  seat  in  Senate  vacated, 
223  n.;  installs  new  State  officers 
in  Tennessee,  225;  makes  arrests 
in  Tennessee,  226  n.;  military 
governor  of  Tennessee,  228, 
230  71..;  receives  advice  from 
Lincoln  as  to  occupation  of 
Tennessee,  235 ;  discrimination 
against  men  of  wealth,  330; 
pardon  proclamations,  333  and 
n.;  order  as  to  restoration  of 
property  by  Freedmen's  Bureau, 
340;  recognizes  Southern  State 
governments,  398;  elected  Vice- 
President,  40171.;  mentioned, 
234  n.,  453. 

Johnson  vs.  Sayre,  141  n. 

Johnston,  Alexander,  152  n., 
535. 

Johnston,  General  Joseph  E.,  sur- 
render, in  relation  to  prosecu- 
tions for  treason,  101  ff.;  Sher- 
man's proposed  terms,  149. 


Johnston,  William  Preston,  im- 
prisoned, 103  n. 

Judge  Advocate  General,  duties 
in  connection  with  military  com- 
missions, 176.    See  also  Holt. 

Judges,  coercion  of,^  in  amend- 
ment to'  Indemnity  Act,  199, 
202-204;  habifity  of,  204  ti.,  187; 
oath  of  loyalty  not  required  in 
Tennessee,  230  7i. 

Judiciary,  occasional  partisanship, 
12. 

Judiciary  Act  of  1789,  pp.  133,  179; 
in  relation  to  confiscation  pro- 
cedure, 285  n. 

Judiciar>^  Committee  of  House  of 
Representatives,  and  restoration 
of  property,  340;  on  Sedition 
Act  of  1798,  p.  480. 

Judiciary  Committee  of  the  Sen- 
ate, proposes  alternative  pen- 
alty for  treason,  SO;  reports  bill 
regarding  habeas  corpus,  130; 
and  Arlington  estate,  321 ;  re- 
ports Thirteenth  Amendment, 
390. 

Jury  trial,  and  conscription,  273; 
and  freedom  of  speech,  528  71. 
See    also    Seventh    Amendment. 

Justice,  administration  of,  in  occu- 
pied districts,  229  jf. 

Justice,     Department     of,     under 
Wilson,   525-526.     See   also  At- 
torney General. 
•Justices  vs.  Murray,  213. 


Kanawha,  as  State  name,  451- 
452. 

Kanawha  River,  445. 

Kansas,  posse  comitatus  in,  160; 
irregularities  as  to  confiscation 
in,  29071. 

Kemp,  In  re,  134,  144. 

Kent,  James,  on  confiscation,  301 ; 
on  liability  of  judges,  203. 

Kentucky,  secessionists  seize  con- 
trol after  the  war,  96;  treason 
cases,  97;  legislature  passes 
resolution  regarding  Davis,  107; 


564 


INDEX 


civil  and  militar>'  conflicts,  148; 
martial  law  in,  165  n.,.  171; 
rivalry  of  Confederate  and 
Union  elements,  193;  judicial 
actions  against  Federal  officials, 
195;  legislature  passes  measure 
to  obstruct  Indemnity  Act,  197; 
proceeds  from  confiscation,  289; 
free  negroes  in,  386;  dispute 
with  Federal  authority  on 
slavery,  387-388;  action  as  to 
slavery,  388-390;  claims  compen- 
sation for  slaves,  403;  policy  of 
neutrality,  407-409;  Federal  lia- 
bility of  the  governor,  419;  Su- 
preme Court  gives  decision  on 
State  taxes  for  relief  of  drafted 
men,  425. 

Kentucky  vs.  Dennison,  421. 

Kentucky  vs.  Palmer,  388. 

King's  Bench,  Court  of  and  case 
of  Wolfe  Tone,  143. 

Kirk  vs.  Lynd,  286  ?i.,  334  n. 

Kneedler  vs.  Lane,  11,  32-33,  259  n., 
429. 

Knights  of  the  Golden  Circle, 
83. 

Knote  vs.  United  States,  334,  335. 

Kriegzxistand,  25. 

"Ku  Klux  Act,"  135. 


Lam.^r  vs.  Micou,  24  n. 

Latham,  Hugh,  case  of,  286  n. 

Lawrence,  T  J.,  on  confiscation, 
302  n. 

Leathers  vs.  Commercial  Insurance 
Co.,  72  n. 

Leavitt,  Judge,  in  Vallandigham 
case,  178. 

Lee,  G.  W.  P.  C,  petitions  for  re- 
covery of  rights  as  to  Arlington 
estate,  321. 

Lee,  R.  E.,  surrender,  in  relation  to 
prosecutions  for  treason,  101 
ff.;  not  imprisoned.  103  n.;  es- 
tate seized,  320-322  {and  see 
United  States  vs.  Lee) ;  uses 
enemy  papers,  487;  mentioned 
110  n.,  Ill,  170,  486. 


Lee,  Mrs.  R.  E..  321. 

Legal  fictions,  462.  516. 

Legal  nature  of  the  Civil  war,  48- 
73,  516-517. 

Letcher,  John,  llOn. 

Libel,  law  of,  480  #. 

Life  interest,  forfeiture  limited  to, 
280-288,  335. 

Limitations,  statute  of,  in  connec- 
tion with  Indemnity  Act,  208  ff. 

Lincoln,  Abraham,  defines  central 
issue  of  the  Civil  War,  1 ;  con- 
fronted with  dilemma,  2;  on  con- 
stitutionality of  secession,  17 ;  on 
importance  of  the  Union,  23; 
war  powers  of,  36-37;  authorizes 
expenditures  without  appropria- 
tion, 36  71. ;  promulgates  laws  of 
war,  38;  creates  special  war 
courts,  40;  leniency  of,  45-47; 
proclaims  blockade,  50;  exceeds 
authoritj'  in  enlarging  army,  52; 
dictatorship,  55-59,  521-522;  calls 
special  session  of  Congress,  52; 
did  not  initiate  a  war,  57;  de- 
fends extraordinary  executive 
acts,  58;  announces  "insurrec- 
tionary" theor\-  of  the  war,  62; 
avoids  recognition  of  Confedera- 
cy, 64;  declares  Confederates 
guilty  of  piracy,  65;  overrules 
generals  claiming  "right  of  hot 
pursuit,"  83;  lenient  towaru 
Confederate  leaders,  100  n;  as- 
sassination, 103-104;  reluctance 
in  suspending  habeas  corpus 
privilege,  121 ;  autograph  and 
published  form  of  message  to 
Congress,  July,  1861,  pp.  122-123; 
justifies  presidential  suspension  of 
"the  privilege,"  122-123;  procla- 
mation of  April  15, 1861,  p.  123  n.; 
consultation  regarding  Chase's 
views  on  habeas  corpus  question, 
132;  opposes  interference  with 
churches,  148;  suspends  habeas 
corpus  privilege,  149  and  n., 
151-152;  directs  release  of  politi- 
cal prisoners,  151  and  n.,  157  Ji.; 
gives  order  for  arrest,  164  n.;  d> 


INDEX 


565 


nies  information  to  Congress, 
165 ;  declares  martial  law  in  Ken- 
tucky, 172;  justifies  summaiy 
measures  in  letter  to  Corning, 
184  n. ;  his  Cabinet  regrets  Val- 
landigham's  sentence,  179  n.; 
commutes  Vallandigham's  sen- 
tence, 179  n.;  clemency,  175;  as- 
sassination approved  by  Confed- 
erate sympathizer,  194;  and  the 
action  against  Cameron,  188- 
189;  on  appointment  of  senators 
from  Tennessee,  223  n. ;  creates 
provisional  court  for  Louisiana, 
231;  cites  guarantee  clause  as 
basis  for  military  occupation, 
235;  generous  toward  South,  237 
n.;  calls  forth  the  militia,  243, 
411;  message  to  special  session 
of  1861,  p.  243 n.;  orders  draft  of 
300,000,  p.  245;  and  the  conscien- 
tious objector,  262;  sjaupathy 
for  Quakers,  262  n.;  letter  to 
Mrs.  Gurney,  262  n.;  on  consti- 
tutionality of  Conscription  Act, 
269-270;  proposes  to  veto  Con- 
fiscation Act,  279  and  n.,  280; 
signs  Confiscation  Act,  280;  on 
confiscation  as  criminal  pro- 
ceeding, 307  72..;  pardon  procla- 
mation, 333;  origination  of 
Emancipation  Proclamation  at- 
tributed to  J.  Q.  Adams,  344;  de- 
nies congressional  power  o  f 
emancipation,  350-351  and  notes; 
disclaims  intention  to  interfere 
with  slavery,  351 ;  and  Wade 
Davis  bill,  351  n.;  views  on 
slavery  summarized,  351  n.;  and 
military  emancipation,  354^.;  on 
non-enforcement  of  Confisca- 
tion Act,  363  n.;  scheme  for  com- 
pensated emancipation  365-370, 
523;  issues  preliminary  Emanci- 
pation Proclamation,  371 ;  issues 
final  Emancipation  Proclama- 
tion, 372;  on  power  of  Congress 
over  slavery,  373  ?i.;  explains 
Emancipation  Proclama- 
tion, 377;  doubts  effectiveness  of 


Emancipation  Proclama- 
tion, 380-381 ;  declares  Emanci- 
pation Proclamation  irrevocable, 
382;  doubts  validity  of  Emanci- 
pation Proclamation  in  the 
courts,  383 ;  on  Thirteenth 
Amendment,  383  and  n.;.  on 
compensation  of  slaveholders, 
402,  403  n.;  regardful  of  State 
rights,  406;  defied  by  Governor 
Magoffin  of  Kentucky,  407;  and 
Kentucky  neutrality,  407-409 ; 
appealed  to  by  malcontents,  417; 
agreement  with  Gamble  of  Mis- 
souri, 417;  gives  financial  aid  to 
Morton  of  Indiana,  427;  atti- 
tude toward  Pierpoint  govern- 
ment, 453;  veto  of  West  Vir- 
ginia bill  feared,  460  n.;  signs 
West  Virginia  bill,  460;  would 
recognize  Richmond  legislature, 
469;  and  Pierpoint-Butler  con- 
troversy 468;  policy  criticized. 
487  #.,  and  suppression  of  Chica- 
go Times,  494-496 ;  bogus  procla- 
mation of,  published,  496;  and 
suppression  of  New  York  World, 
496-499.  View  as  to  arrests,  sup- 
pression of  newspapers,  etc.,  508 ; 
exercised  more  power  than  other 
Presidents,  513,  524;  his  execu- 
tive acts  summarized,  513-514; 
view  of  the  war  power,  514;  his 
personal  qualities  as  a  factor  in 
the  emergency,  519;  on  democ- 
racy at  stake,  529-530. 

Lincoln  Administration,  central 
problem  of,  vii;  policy  toward 
treason,  86,  88,  94;  judicial  de- 
cision in  Indiana,  shows  opposi- 
tion to,  207;  no  thoroughgoing 
arbitrary  government,  520;  com- 
pared with  Wilson  administra- 
tion, 523-530. 

Lincoln's  Cabinet,  apprehension  as 
to  decision  on  habeas  corpus 
question,  132;  regrets  Vallandig- 
ham's arrest,  179  n.;  views  as  to 
slavery,  377  ?i.;  and  State  rights, 
406;  attitude  on  West  Virginia 


566 


INDEX 


bill,  456  J^.;  regretted  suppres- 
sion of  Chicago  Times,  494. 

Livingston  vs.  Jefferson,  187  n. 

Local  government  during  military 
occupation,  217. 

Louallier,  arrested  by  General 
Jackson's  order,  145  n. 

Loudoun  Countj',  Virginia,  454  n. 

Louisiana,  blockaded,  50;  Military 
occupation  of,  218;  collection  of 
customs  in,  222;  recruitment  of 
negroes  in,  222;  proceeds  from 
confiscation,  289;  administration 
of  abandoned  estates,  327;  pro- 
visional court  of,  41,  231-233; 
mentioned,  307. 

Louisville,  Kentucky,  148. 

Loyalty,  and  restoration  of  prop- 
erty, 336-340. 

Lubbock,  F.  R.,  imprisoned, 
103  n. 

Luther  vs.  Borden,  10  n.,  62  n.,  144 
n.,  159,  255. 

Lj'on,  Matthew,  punished  under 
Sedition  Act,  479. 

Lyons,  Lord  James,  111. 


McCall  vs.  McDowell  et  al., 
194  n. 

McCall's  case,  255. 

McClellan,  General  G.  B.,  confer- 
ence with  the  press,  4S2. 

McDowell,  General  Irwin,  sued 
194. 

McGregor,  J.  C,  438,  452  n. 

McKee  vs.  United  States,  318  n.; 
323  n. 

McKenzie,  Lewis,  464. 

McVeigh  vs.  United  States,  310, 
315  n. 

Magna  Carta,  182,  305. 

Magoffin,  Beriah,  Governor  of 
Kentucky,  refuses  Lincoln's  call 
for  troops,  407;  liability  to  trial 
by  court-martial,  419;  and  Jeffer- 
son Davis,  485  n. 

Mails,  exclusion  of  newspapers 
from,  500  Jjf. 

Maine,  formation  of,  474-475. 


Mallory.  Col.,  interview  with  But- 
ler, 355. 

Mallor>',  S.  P.,  imprisoned,  103  n. 

Manuscripts  (for  a  constitutional 
study  of  the  Civil  War) ,  545  fj. 

Map  of  "Partition  of  Virginia," 
442. 

Marais,  In  re,  141  n.,  188  n. 

Marque  and  reprisal.  See  priva- 
teers. 

Marshal,  United  States  Federal, 
uses  posse  comiiatus,  160;  du- 
ties in  connection  with  impris- 
onment for  disloyalty,  175. 

Marshall,  John,  Chief  Justice,  on 
State  and  national  sovereignty, 
22;  opinion  in  Bollman  and 
Swartwout  case,  120.  133-134;  on 
confiscation,  300-301 ;  on  suprem- 
acy of  Federal  authority,  409. 

Marshall,  John  A.,  150. 

Martial  law,  in  general  1^2  if.;  in 
Germany,  25,  26  n.;  in  New  Or- 
leans, 91;  distinguished  from 
military  law,  142  n.;  in  England, 
143;  in  America,  144;  bibli- 
ography, 144  n.;  declared  by 
Jackson,  145  and  n.;  Sir  Mat- 
thew Hale's  comment,  146  71.; 
lack  of  a  clear-cut  principle,  147; 
in  relation  to  habeas  corpus,  153; 
authorized  by  Lincoln,  152, 
154  71.;  in  Kentucky,  165  n.;  in 
Civil  War,  169-185;  and  civil 
law,  174;  overruled  in  Milligan 
case,  181;  in  St.  Louis,  208 n.; 
during  militan,'  occupation,  225 
and  n.;  B.  F.  Butler's  views  on, 
225  n.;  and  slavery.  354.  374  #.; 
at  Norfolk.  468;  the  setting  aside 
of  law,  512;  and  news  control, 
507. 

Martin  vs.  Mott,  127,  255. 

Marjdand,  treason  cases  in,  97; 
martial  law  in,  170,  173;  free  ne- 
groes in.  3S6;  abolition  of  slav- 
ery in,  389;  claims  compensation 
for  slaves.  402-403;  attitude  as  to 
passage  of  Federal  troops,  409- 
410.    See  also  Mcrrj'man, 


INDEX 


567 


Mason,  James  M.,  advises  Davis, 
106  n.;  seat  in  Senate  vacated, 
451. 

Massachusetts,  ratification  of  the 
Constitution,  15  n.;  and  forma- 
tion of  Maine,  474-475. 

Meade,  General  George  G.,  485. 

Mechanic's  Bank  vs.  Union  Bank 
of  Louisiana,  233  n. 

Memphis,  Tennessee,  war  courts, 
231. 

Merryman,  Ex  parte,  84,  120  n., 
120-121,  131,  137  n.,  161-162,  519. 

Methodist  Churches,  War  Depart- 
ment order,  148. 

Metropolitan  Record  (New  York), 
editor  prosecuted,  504. 

Mexican  War,  no  conscription,  241. 

Mexico,  American  occupation  of, 
219  #. 

Michelet,  on  conscription,  240. 

Michigan,  and  confiscation,  289, 
313. 

Middleton,  Henry,  345-346. 

Military  authority,  restraints  upon, 
27-28;  extraordinary  use  during 
the  Civil  War  summarized,  183- 
184. 

Military  capture,  of  enemy  proper- 
ty, 294  n.;  of  private  property, 
324. 

Mihtary  code,  application  to  news 
writers,  489  ff. 

Military  commission,  sentence  set 
aside  in  Milligan  case,  179  jf.; 
Supreme  Court  refuses  to  review 
proceedings  i  n  Vallandigham 
case,  179;  authorized  in  Lincoln's 
proclamation  of  September  24, 
1862,  152,  154  n.;  use  of,  during 
Civil  War,  174  #.;  520-521;  em- 
ployed during  military  occupa- 
tion, 217,  230;  used  for  trial  of 
editor,  490-491. 

Military-  information,  revelation 
of,  485  ff. 

Military  law,  140   ff. 

Military  necessity,  not  the  typical 
American  principle,  27,  512; 
should    be    strictly    interpreted, 


217 ;  in  relation  to  emancipation, 
378. 

Military  occupation,  in  general, 
215-218;  of  the  South,  218  #.; 
sustained  by  Supreme  Court, 
227;  constitutional  basis,  234  Jj.; 
substitution  of  Federal  for  local 
authority,  224-225;  inauguration 
of  a  military  regime,  225-227; 
confusion  of  authority,  227-229; 
administration  of  justice,  229  jj'. 

Military  power,  and  civil  authori- 
ty, 140  #.,  158  #.,  173. 

Militia,  Federal  laws,  242,  254 ;  and 
suppression  of  insurrection,  242- 
243 ;  duties  in  draft  disturbances, 
259-260;  in  connection  with  con- 
stitutionahty  of  conscription, 
271 ;  functions  of  the  President 
in  relation  to  those  of  the  gov- 
ernor, 419  Jj.;  State  and  Federal 
functions,  411-412.  See  also 
State  and  Federal  relations. 

Militia  Act  of  1862,  nature  and 
purpose,  245-246,  247  n.;  and 
presidential  regulations,  37,  252- 
256;  unconstitutionality  urged, 
253;  and  emancipation,  363 
mentioned,  406,  514. 

Miller  vs.  United  States.,  42  n.;  72, 
284  n.,  295,  308,  312  (esp.)  312 
315,  515  n. 

Milligan,     Ex     parte,     180  ff. 
sources,  180  n.;  dissenting  opin- 
ion, 182;  mentioned,  31,  40,  133 
and  n.,   137  n.,   144  n.,   167,  236, 
507,  513,  515  n.,  519,  521. 

Milwaukee,  drafting  of  aliens  in, 
265. 

Minors,  enlistment  of,  158,  163  n., 
257  n. 

Mississippi,  blockaded,  50;  "made 
war,"  106. 

Mississippi  vs.  Johnson,  9  n. 

Missouri,  conspiracy  and  treason 
cases  in,  91,  97;  military  and 
civil  conflict,  148;  martial  law 
in,  171 ;  disturbances  due  to 
bu-shwhacking,  etc.,  175;  pro- 
ceeds   from    confiscation,    289; 


568 


INDEX 


Fremont's  action  as  to  emanci- 
pation, 354;  and  compensated 
emancipation,  366;  emancipation 
by  State  action,  389;  Federal 
liability  of  the  governor,  419^.; 
an  editor  punished,  490-491.  See 
also  Gamble. 

Missouri  Compromise,  365  n. 

Mitchell  vs.  Clark,  137,  207,  210. 

Mitchell  vs.  Harmony,  205  n. 

Monroe,  James,  on  conscription, 
269. 

Montana,  martial  law  in,  146. 

Montgomery,  Alabama,  indictment 
of  C.  C.  Clay,  92. 

Montgomery^  convention,  237  n. 

Morgan,  E.  D.,  Governor  of  New 
York,  106  n. 

Morrill,  Lot  M.,  Senator  from 
Maine,  on  confiscation,  277. 

Morris,  Gouverncur,  and  habeas 
corpus  clause,  126. 

Morris'  Cotton,  285  n. 

Morton,  Oliver  P.,  Governor  of 
Indiana,  11,  82;  and  conscription, 
246;  correspondence,  251  r?.;  and 
conscientious  objectors,  260;  and 
financial  crisis  in  Indiana,  426- 
427 ;  mentioned,  226  ?!..,  258. 

Mostyn  vs.  Fabrigas,  144. 

Motley,  John  Lothrop,  on  seces- 
sion, 18-21. 

Mowry,  Sylvester,  seizure  of  his 
mines,  290  n. 

Moyer,  In  re,  144  n.,  147  n. 

Moyer  vs.  Peabody,  144  n. 

Mrs.    Alexander's    Cotton,    283  ?i., 

324  n.,  325  n. 
Mullaly,  John,  prosecution  of,  504. 
Mumford,    executed    at   New    Or- 
leans, 91,  227. 
Mvirphreesboro,  Tenn.,  aiTests  at, 

226  n. 
Mutiny  Act  (Enghsh),  39,  141. 


Napoleon,    and    sequestration    of 

debts,  305. 
Napoleon  III,  proposes  mediation, 

64. 


Nashville,  Tennessee,  mayor  ar- 
rested, 226  n. 

Navy,  additions  to,  244. 

"Necessity  knows  no  law,"  26.  See 
also  military  necessity. 

Negroes,  recruitment  of,  172,  222; 
effect  of  Emancipation  Procla^ 
mation  upon,  381-382;  discrim- 
ination against  free  negroes  in 
certain  States,  386.  See  also 
freedmen,  slave-soldiers,  slavery 
emancipation. 

Neutrality,  of  Kentucky,  407-409. 

Nevada,  confiscation  in,  290. 

New  England,  Department  of, 
under  command  of  General  B. 
F.  Butler,  415. 

New  Hampshire,  ratification  of  the 
Constitution,  15  n. 

New  Jersej',  bounty  system,  249; 
and  State  claims,  428. 

New  Mexico,  confiscation  in,  290. 

New  Orleans,  provost  court  of 
United  States  army  in,  40-41; 
execution  of  Mumford,  91 ;  mar- 
tial law  declared  by  Jackson, 
145  ?i.;  arrest  of  clergymen, 
155 71.;  occupation  of,  219,  225; 
property  seized  by  General  But- 
ler, 223  n.;  war  courts,  231; 
plantation  bureau,  327. 

New  York,  ratification  of  the  Con- 
stitution,  15  n.;  Statute  regard- 
ing  penalizing   of   judges,   203; 
proceeds  from  confiscation,  289; 
decision  as  to  German  property, 
313  n.;  and  State  claims,  428. 
New   York   City,   indictments  for 
conspiracy,   etc.,  85;    draft  riot, 
251 ;  mentioned,  149  n.,  155  n. 
New  York  Dailij  News,  46,  485. 
New  York  Journal  of  Commerce, 

suppression  of,  496 /f. 
New    York    Tribune,    106,    268  n.; 

prints  false  rumor,  485  n. 
New  York  World,  publishes  bogus 
proclamation,  157  n.;  criticizes 
emancipation  policy,  379,  487; 
suppression  of,  496-499,  507; 
mentioned,  46,  189. 


INDEX 


569 


News  control,  in  World  War,  528  n. 

Newspaper  correspondents,  under 
militaiy  jurisdiction,  489-490;  as 
Confederate  spies,  487,  491,  492. 
See  also  newspapers. 

Newspapers  and  news  control, 
activity  of  the  press  during  the 
Civil  War,  484^.;  entente  cor- 
diale  with  Government,  482; 
revelation  of  military  informa- 
tion, i85  jf.;  unreliable  nature  of 
wartime  news,  485  n.;  editorial 
hostility  to  the  Government, 
^87  jf.;  measures  of  news  control, 
489  flf.,  499-500,  506;  suppression 
of,  492  ff.;  exclusion  from  the 
mails,  500 jf.;  arrest  of  editors, 
502-504;  and  the  courts,  504; 
summary,  505-510,  520. 

Ney,  Marshal,  87. 

Nicolay,  J.  G.,  comment  on  Thir- 
teenth Amendment,  400  n. 

Nicols,  R.  F.,  116. 

Nolle  prosequi,  91. 

Non-combatants,  status  of,  during 
military  occupation,  216. 

Norfolk,  Virginia,  grand  jury  deals 
with  treason,  102  ?i.;  Davis  in- 
dicted for  treason,  108;  confis- 
cation cases,  290,  329;  under 
restored  government,  461 ;  repre- 
sentation in  Congress,  464; 
under  control  of  General  B.  F. 
Butler,  148,  4m  jf. 

North  Carolina,  ratification  of  the 
Constitution,  15  n.;  blockaded, 
50;  reopening  of  Federal  courts, 
234;  conscription  during  Revolu- 
tion, 240  n.;  supervision  of  negro 
affairs  in,  382;  Federal  liability 
of  the  governor,  419. 

Northampton  County,  Virginia, 
461. 

Northwest  Confederacy,  disloyal 
societies  make  plans  for,  83. 

Nullification,  2. 


Oath   of   Allegiance.     See  alle- 
giance, oath  of. 


Occupied  territory,  treated  as 
enemy  territory,  222 jf.;  passed 
through  various  stages,  237  ff. 

O'Conor,  Charles,  111. 

Ohio,  conscription  in,  251 ;  pro- 
ceeds from  confiscation,  289. 

Oklahoma,  martial  law  in,  146. 

Old  Capital  Prison,  155. 

Opdyke,  George,  intrusted  by  Lin- 
coln with  emergency  funds,  37. 

Order  of  American  Knights,  83,  86. 
See  also  Milligan. 

Order  of  the  Star,  83. 

Osborn  vs.  United  States,  290  n., 
334  n. 

Ould,  R.,  111. 

Overstreet,  Representative,  340. 

Ozaukee  County,  Wisconsin,  draft 
troubles  in,  260. 


Palmer,  John  M.,  prosecuted  in 
Kentucky,  196^.;  dispute  on 
slavery,  387-388. 

Paquette  Habana,  The,  296  n. 

Pardon,  proclamations  of,  116;  in 
relation  to  treason  and  confisca- 
tion, 88;  in  relation  to  Davis' 
trial,  115;  in  relation  to  court- 
martial  decrees,  141  n.;  of  po- 
litical prisoners,  151  n.;  in 
ConEscation  Act  of  1862,  279 
and  n.;  effect  on  restoration  of 
property,  332  jf.  See  also  United 
States  vs.  Klein. 

Parliament,  English,  power  as  to 
habeas  corpus,  125,  127;  and 
emancipation,  401. 

Parton  James,  on  Butler  at  New 
Orleans,  227  n. 

Passports,  required  by  Seward,  150. 

Patterson,  Justice,  on  confiscation 
of  debts,  305. 

Peabody,  Judge  Chas.  A.,  and  pro- 
visional court  for  Louisiana,  231- 
232. 

Pendleton,  Congressman  from 
Ohio,  on  Thirteenth  Amend- 
ment, 393. 

Pennsylvania,    Democratic    party 


570 


INDEX 


of,  11;  conspiracy  cases,  90; 
martial  law  in,  170;  Supreme 
Court  issues  writ  against  Cam- 
eron, 188;  case  of  militia  delin- 
quents, 258  and  n.;  claim  for 
reimbursement,  428. 

Pennsylvania  Reserve  Corps,  417. 

People  vs.  Dix,  498. 

Persona  standi.  See  standing  in 
court. 

Petitions,  anti-slavery,  in  Con- 
gress, 376. 

Petrel,  The,  85,  92. 

Philadelphia,  treason  and  piracy 
indictments,  85,  92;  martial  law 
requested,  170;  mentioned,  149, 
188. 

Phillips,  Wendell,  denounces  Lin- 
coln's government,  1. 

Pierpoint,  Francis  H.,  Governor  of 
"restored  Virginia,"  chosen,  445; 
and  later  career  of  restored  gov- 
ernment, 461 J^'.;  variety  of  his 
titles,  462;  controversy  with  B. 
F.  Butler,  148,  466-469;  removed, 
466  n. 

Pierpoint  government.  See  Vir- 
ginia, restored  government. 

Pierpoint  papers,  435  n.,  433-476 
passim,  548. 

Pierrepont,  Edwards,  151  n. 

Pillage,  291  n. 

Pinckney,  Charles,  and  habeas 
corpus  clause,  126. 

Piracy,  in  relation  to  Confederacy, 
65  ff.;  92. 

Plantation  bureau  at  New  Orleans, 
327. 

Plantations.  See  abandoned  es- 
tates. 

Planters'  Bank  vs.  Union  Bank, 
72  n. 

Pleasants  County  (western),  Vir- 
ginia, 446. 

Political  prisoners.  See  prisoners. 
political. 

Political  questions,  judicial  atti- 
tude toward,  10  ff. 

"Pope's  bull  against  the  comet" 
(simile  used  by  Lincoln),  381. 


Posse  comitatus,  160,  162. 

Postmaster  General,  and  the  news- 
papers, 500  ff. 

President,  attempt  to  enjoin,  9  n.; 
war  powers,  35  ff.,  514-515; 
powers  employed  by  Lincoln,  36- 
37;  derivation  of  power  from 
Congress,  39;  fountain-head  of 
military  justice,  40;  war  powers 
as  interpreted  by  Senator 
Browning,  42;  power  of  sup- 
pressing insurrection  not  tanta- 
mount to  war  power,  53,  54; 
power  to  initiate  a  state  of  war 
considered  in  Prize  Cases,  52  ff.; 
acts  approved  by  Congress,  55; 
powers  in  case  of  insurrection, 
61 ;  power  to  su.spend  habeas  cor- 
pus privilege,  118-139;  oflBce  re- 
ferred to  as  "feeble,"  125;  acts 
ratified,  128-129;  confirms  court- 
martial  decrees,  141  n.;  "suspen- 
sion of  the  writ,"  149,  151-152, 
161 J^.;  control  of  political  pris- 
oners, IGiff.;  denies  information 
to  Congress,  165  n.;  indemnifi- 
cation, 191 ;  order  of,  serves  as 
defense,  198;  liability  for  dam- 
ages, 187  n.;  power  as  to  mili- 
tary occupation,  219;  power  to 
establish  special  war  courts,  232; 
authority  to  issue  regulations  as 
basis  for  conscription,  245;  and 
Militia  Act  of  1862,  p.  252;  exclu- 
sive judge  of  existence  of  insur- 
rection, 255;  power  of  pardon, 
279  n.;  power  of,  in  relation 
to  Emancipation  Proclamation, 
374;  Dana's  views  as  to  power 
of  emancipation,  384  n.;  relation 
to  State  governors,  419  ff.;  act 
concerning  threats  against,  527 
n.;  slight  restraint  upon,  517- 
519.  See  also  assassination,  Lin- 
coln, Johnson,  Wilson. 

Presidential  justice,  39,  229  Jj'.; 
514. 

Presidential  legislation,  37,  514. 

Press,  freedom  of,  in  World  War, 
527-528.    For  general  treatment, 


INDEX 


671 


see  newspapers  and  news  con- 
trol. 

Pringle,  Cyrus  G.,  261-262. 

Prisoners  of  war,  exchange  of,  64. 
See  also  surrender. 

Prisoners,  political,  arrest  of, 
149  ff.;  treatment,  149-150;  as- 
sociation of,  150  n.;  release  in 
February,  1862,  151  and  n.;  con- 
trol transferred  from  State  to 
War  Department,  151)  number 
of,  152  n.;  practice  as  to  release, 
156-157,  157  n.,  165;  lists  to  be 
furnished,  164  jf.  See  also  arrest, 
editors,  disloyalty. 

Privateers,  85,  92. 

Prize  at  sea,  295. 

Prize  Cases,  50  n.;  52  jf.,  54,  60  n., 
61  n.,  71,  114,  221,  308,  312,  515, 
519. 

Proceedings  in  rem,  in  confiscation 
cases,  280,  285. 

Property,  forfeiture  of,  military 
captures,  291  n.;  pillage  for- 
bidden, 291  n.;  for  violation  of 
non-intercourse  regulations,  291 
n.;  of  Confederate  government, 
291  n.  See  also  confiscation, 
restoration,  enemy  property, 
German  property,  eminent  do- 
main, due  process  of  law,  eman- 
cipation. 

Property,  military  capture  of,  Lin- 
coln's order  as  to  compensation, 
367.   See  also  pillage. 

Protector,  The,  50  n. 

Provost  Court,  New  Orleans,  233. 

Provost  marshal,  tries  to  silence  a 
preacher,  148;  duties  in  connec- 
tion with  political  arrests,  156, 
158,  159;  indicted  for  murder, 
195;  called  to  account  by  courts, 
256-257. 

"Provost-marshal  justice,"  233. 

Prussia,  dictatorship  in,  57.  See 
also  Germany. 

Jruyn,  John  Van  S.  L.,  Repre- 
sentative from  New  York,  on 
Thirteenth  Amendment,  393- 
394. 


Pufendorf,  Samuel  von,  on  confis- 
cation, 299. 

Pulaski,  Tennessee,  arrests  at, 
226  71. 

Putnam,  Captain,  and  suppression 
of  Chicago  Times,  494. 


Quakers,  opposition  to  war  and 
conscription,  261-263;  Lincoln's 
sympathy  for,  262  n. 


Railroads,  seized,  226. 

Randall  vs.  Brigham,  204  n. 

Ratification  of  the  President's  acts. 
See  under  Congress. 

Raymond  vs.  Thomas,  140. 

Reagan,  John  H.,  imprisoned, 
103  n. 

Rebellion,  defined,  60 ;  punishment 
for  in  Treason  Act  of  1862,  80, 
81;  in  South  Carolina  in  1871, 
135;  Jacobite,  143;  in  Jamaica, 
144  n.;  Dorr,  146.  See  also  Civil 
War,  habeas  corpus,  insurrection. 

Rebels.    See  standing  in  court. 

Reconstruction,  Lincoln's  plan,  38, 
237 ;  in  relation  to  military  occu- 
pation, 237;  and  legislation  re- 
garding pardon,  279  n.;  John- 
son's action,  398  jj.;  opposition 
of  radicals  to  Johnson's  plan, 
399-400.  See  also  Virginia,  re- 
construction of. 

Reed,  William  B.,  111. 

Regional  agreements,  523  n. 

Release.    See  prisoners. 

Replevin,  283  n. 

Restoration  of  property,  332-341. 

Reversionary  right  in  confiscated 
property,  287-288. 

Revolution,  American,  State  sov- 
ereignty during,  16  n.;  use  of 
draft  by  the  States,  240  and  n.; 
confiscation  during,  300;  confis- 
cation of  debts,  306;  British 
action  on  freeing  slaves,  343-344; 
patriot  committees,  440;  taxa- 
tion, 406. 


572 


INDEX 


Revolution,  right  of,  in  relation  to 
secession,  19. 

Rhode  Island,  ratification  of  the 
Constitution,  15  n.;  Dorr  rebel- 
lion, 146;  army  encampment, 
413  n. 

Rhodes,  J.  F,  152  n.,  164  n. 

Richmond,  Virginia,  Davis  indi- 
cated for  treason,  108;  confisca- 
tion cases,  290,  310,  329,  and  7!.; 
ordinance  of  secession,  437;  leg- 
islature denounces  restored  gov- 
ernment, 447  n.;  secession  con- 
vention prohibits  election  of 
Federal  congressmen,  464  n. 

Riot,  defined,  60. 

Ritchie  Court  House,  Virginia, 
446. 

Roane  County,  Virginia,  445. 

Rogers,  Representative  from  New 
Jersey,  428. 

Rose  vs.  Himely,  72  n. 

Rosecrans,  General  W.  S.,  in  com- 
mand in  Tennessee,  228. 

Rousseau,  L.  H.,  in  Davis  case, 
107. 

Rule  of  law,  Anglo-Saxon  view,  26, 
140,  511  ff.;  erroneously  sup- 
posed to  be  supplanted  by  war, 
45;   in  Civil  War,  519,  521. 

Russell,  Judge  A.  D.,  and  the  Dix 
case,  498-499. 

Russell,  Lord  John,  on  Emancipa- 
tion Proclamation,  379. 

Russell,  Sir  William  H.,  482. 

Russia,  Emperor  of,  as  arbiter  in 
dispute  concerning  slaves,  345- 
347. 

Rutherford,  on  confiscation,  299. 


S.\BOTAOE  Act,  527  n. 

St.  Lawrence,  The,  92. 

St.  Louis,  indictments  for  con- 
spiracy, etc.,  &5,  91-92;  martial 
law  in,  173,  208  n.;  General  Scho- 
ficld's  seizure  n.,  208;  seizure 
of  property  at,  283  n.;  case  at 
law  involving  Emancipation 
Proclamation,  382  n. 


Salomon,  Edward,  Governor  of 
Wisconsin,  and  drafting  of 
aliens,  265. 

Saulsbury,  Willard,  Senator  from 
Delaware,  on  Emancipation 
Proclamation,  383  n.;  on  Thir- 
teenth Amendment,  393. 

Savannah,  The,  66  n. 

Schenck,  General,  proclaims  mar- 
tial law,  173. 

Schoficld,  General  John  M.,  and 
case  of  Mitchell  vs.  Clark,  207 
ff.;  and  emancipation  by  mili- 
tary authority,  361;  Lincoln's 
letter  to,  on  arrests,  suppressions, 
etc.,  508. 

Schwab,  J.  C,  303. 

Scott,  General  Winfield  S.,  149  n. 

Secession,     constitutional     phases, 

12-24;  declared  null  in  Texas  vs. 

White,  221 ;  of  Virginia,  437;  and 

treason,  456   (and  see  treason) ; 

a  dead  issue,  522. 

Secret  service  division,  of  Depart- 
ment of  Justice,  526. 

Seddon,  James  A.,  110  n. 

Sedgwick,  Representative  of  New 
York,  on  war  power  over  slaverj', 
347. 

Sedition  Act  of  1798,  478  ff.,  480  n. 

Sedition  law  of  1918,  526-527. 

Seditious  libel,  481. 

Segar,  Joseph,  Representative  from 
restored  Virginia,  opposes  West 
Virginia  bill,  454  72.;  contro- 
versy as  to  his  seat,  464-466. 

Seizures,  wrongful.  See  Indemnity 
Act. 

Selective  Draft  Law  Cases,  274. 

Selective  Service  Act  of  1917,  240, 
526,  529  n. 

Semmes  vs.  United  States.  334  71. 

Semple  vs.  United  States,  309  71. 

Senate  of  the  United  States,  im- 
peachment of  Senator  Hum- 
phries, 91  71.;  passes  bill  during 
Burr  conspiracy  to  suspend 
habeas  corpus  privilege,  127; 
passage  of  indemnity  bill,  190- 
191 ;    vote   on   conscription,  270 


INDEX 


573 


n.;  passes  bill  to  compensate 
Missouri  slavcholdei's,  366 ;  equal 
suffrage  iu,  iiS-l;  scats  of  Virginia 
senators  vacated,  451 ;  admission 
of  senatore  from  restored  Vir- 
ginia, 454.  See  also  Judiciary 
Committee  of  the  Senate. 

Sequestration,  Confederate  Act  of, 
302  n. 

Sequestration  of  property,  by  Gen- 
eral Butler  at  New  Orleans,  223 
n. 

Seward,  William  H.,  and  Confeder- 
ate commissioners,  63;  protests 
against  French  mediation,  64;  in 
charge  of  arbitrary  arrests,  149 
ff.;  sued  by  G.  W.  Jones,  189; 
and  drafting  of  aliens,  265; 
transmits  information  as  to  con- 
fiscable property,  282;  on  ef- 
fect of  Emancipation  Proclama- 
tion, 379;  proclaims  ratification 
of  Thirteenth  Amendment,  397- 
401;  on  West  Virginia  bill,  457; 
signs  order  for  suppressing  New 
York  World,  497;  orders  arrest 
of  an  editor,  503. 

Seymour,  Horatio,  efforts  to  pros- 
ecute General  Dix,  189;  and 
draft  riot,  251 ;  and  suppression 
of  New  York  World,  497. 

Shepley,  General  George  F.,  mili- 
tary governor  of  Louisiana,  228. 

Sherman,  John,  Senator  from 
Ohio,  illegality  of  President's 
acts,  55  n. 

Sherman,  General  W.  T.,  terms  of 
surrender  proposed  to  Johnston, 
149;  would  treat  reporters  as 
spies,  491 ;  mentioned,  101. 

Shields  vs.  Schiff,  288. 

Short  vs.  Wilson,  200. 

Sistersville,  Virginia,  446. 

Situs,  in  confiscation  procedure, 
283-284,  362. 

Sixth  Amendment,  43,  313,  314. 

Slavery,  conflict  of  State  and  Fed- 
eral laws,  172;  difficulties  in 
Kentucky,  195-196;  General 
Palmer  prosecuted  for  aiding  es- 


cape of  slaves,  196;  war  power 
over,  343  ff.;  in  American  con- 
stitutional system,  343  ff.;  de- 
bates concerning,  349;  and  mar- 
tial law,  views  of  J.  Q.  Adams 
on,  374  ff.;  State  laws  on,  385  ff. 
See  also  emancipation. 

Slave-soldiers,  emancipation  of, 
363-364,  386. 

Slave  States,  analyzed  as  to  ratifi- 
cation of  Thirteenth  Amend- 
ment, 397-398. 

Slocum  vs.  Mayberry,  359. 

Smith,  Benj.  H.,  89. 

Snead,  Judge  Edward  K.,  and 
General  Butler,  467-468. 

Social  history,  in  relation  to  con- 
stitutional history,  2  ff. 

Soldier,  two-fold  character  of, 
142  n. 

Solicitor  of  the  Treasury,  report  on 
proceeds  from  confiscation,  289. 

Sons  of  Liberty,  83.  See  also  Mil- 
hgan. 

South,  occupation  of,  215-238;  ter- 
ritory treated  as  part  of  the 
United  States,  221  ff.;  as  enemy 
territory,  223  ff.;  passed  through 
various  governmental  stages,  237 
ff.;  indebtedness  to  North,  303- 
304;  collection  of  Federal  Tax 
in,  317-323;  burden  of  the  direct 
tax,  423-424. 

South  Africa,  and  martial  law,  143. 

South  America,  emancipation  in, 
375  and  n. 

South  Carolina,  State  rights  in,  2; 
ratification  of  the  Constitution, 
15  7i.;  blockaded,  50;  suspen- 
sion of  habeas  corpus  privilege, 
135 ;  Federal  tax  in,  318,  323 ;  as- 
signment of  lands  to  freedmen, 
340;  Hunter's  order  regarding 
emancipation,  354. 

Southern  States,  decisions  on  con- 
scription, 271  n. 

Speech,  freedom  of,  477  n.,  520; 
interpreted,  501 ;  in  World 
War,  527-528.  See  also  Vallan- 
digham. 


574 


INDEX 


Speed,  James,  Attorney  General, 
on  prosecutions  for  treason,  90, 
100,  102;  on  coniiscation  after 
the  war,  328-329,  330;  mentioned, 
98,  132. 

Speer  vs.  School  Directors,  249  n. 

Spies,  arrest  of,  155.  See  also 
newspaper   correspondents. 

Stacy,  In  re.,  144. 

Stanbery,  Henry,  Attorney  Gen- 
eral, avoids  connection  with 
Davis  prosecution,  107. 

Standing  in  court,  of  "rebels,"  307 
ff.,  362. 

Stanton,  Edwin  M.,  letter  from 
Bates,  132;  correspondence  with 
Lincoln  regarding  release  of  pris- 
oners, 157  n.;  on  interference  by 
the  courts,  159;  orders  listing  of 
prisoners,  167;  on  prosecution  of 
Federal  officials,  189;  radical  as 
to  reconstruction,  237;  and  con- 
scription in  Indiana,  246;  and 
Butler-Andrew  controversy,  416; 
gives  financial  aid  to  Indiana, 
426;  on  West  Virginia  bill,  458; 
and  news  control,  495,  503;  men- 
tioned, 155  n.,  268  n. 

Stare  decisis,  8  n.,  9. 

State  and  Federal  "cooperation," 
523. 

State  and  Federal  relations,  dur- 
ing Civil  War,  405-432;  inter- 
rupted in  South,  223  and  n.;  as 
to  slaveiy,  385  fj.,  388-390;  mili- 
tary matters,  410-419;  financial 
matters,  423-428;  judicial  con- 
flicts, 428^.;  general  statement, 
432. 

State  citizenship,  in  relation  to 
draft,  267. 

State  claims  after  the  war,  427-428. 

State  Department,  controls  arbi- 
trary arrests,  H9ff.,  150;  and 
drafting  of  aliens,  265. 

State  espionage  acts,  529  n. 

State  governments,  disappearance 
in  Tennessee,  235  n. ;  relation  of, 
to  Federal  occupying  power,  219, 
225;  rival,  433. 


State  governors,  functions  as  to 
Federal  army,  412-422;  appoint- 
ment of  United  States  Volunteer 
officers,  412  and  n.;  hability  to 
Federal  coercion,  419-422;  in  re- 
lation to  the  President,  419  J^.; 
Federal  duties  of,  420 ff.;  may 
not  exercise  war  power,  422  71.; 
powers  in  connection  with  Mili- 
tia Act  of  1S62,  p.  37;  duties  in 
connection  with  political  ar- 
rests, 156;  appoint  mihtia  offi- 
cers, 244;  asked  to  relieve 
drafted  persons,  257-258;  duties 
as  to  operation  of  draft,  260. 

State  judges.  See  judges,  coercion 
of. 

State  legislatures,  powers  as  to 
militia  delinquents  (in  relation 
to  those  of  Congress),  258  n. 

State  rights,  in  South  Carolina  2; 
in  relation  to  secession,  12-24; 
during  the  Revolution,  16  n.;  re- 
cent emphasis  upon,  523  n.  See 
also  State  and  Federal  relations. 

State  rights  party,  in  constitutional 
convention,  21. 

State  sovereignty,  in  relation  to 
secession,  13. 

States,  reimbursement  of,  for  mili- 
tary expenses,  426;  coercion  of, 
by  Federal  Government,  24. 

Stephens,  Alexander  H.,  on  consti- 
tutionality of  secession,  13;  im- 
prisonment, 103  n.;  on  Hampton 
Roads  Conference,  403  n. 

Stevens,  Thaddeus,  on  constitu- 
tionalitj'  of  war  measures,  30;  on 
indemnity  bill,  192;  radical  as  to 
reconstruction,  237;  on  slavery  in 
relation  to  the  Constitution,  349; 
Bates's  comment  on,  400  n.;  on 
West  Virginia  bill,  455-456. 

Stewart,  Alexander  P.,  102. 

Stoehr  vs.  Miller,  313  n. 

Story,  Joseph,  Justice,  on  war 
powers,  32;  on  jury  retrial  in  an 
appellate  court,  211 7i.;  on  con- 
fiscation, 299  and  n. ;  on  freedom 
of  speech,  501. 


INDEX 


575 


Stowell,  Lord,  on  war  without  dec- 
laration, 53. 

Strong,  Justice,  on  confiscation, 
307. 

Sumner,  Charles,  on  war  powers, 
31 ;  debate  with  Browning  on 
war  powers  of  Congress,  41-43; 
on  dual  character  of  Civil  War, 
71,  72;  urges  punishment  of  Con- 
federate leaders,  99  n.;  radical  as 
to  reconstruction,  237;  on  sla- 
very, 349;  on  "State-suicide," 
349;  proposes  act  of  Congress 
"adopting"  Emancipation  Proc- 
lamation, 383  n.;  proposes  that 
Congress  determine  ratification 
of  Thirteenth  Amendment,  400  n. 

Supreme  Court  of  the  United 
States,  on  secession  and  inde- 
structibility of  the  Union,  23-24, 
221;  on  war  powers,  31-32;  de- 
fines war  powers  of  Congress, 
43;  on  legality  of  Civil  War, 
52  jf.;  on  congressional  approval 
of  President's  acts,  56;  ineffec- 
tive apainst  executive  usurpa- 
tion, 59;  states  insurrectionary 
theory  of  the  Civil  War,  63;  on 
concession  of  belligerent  rights 
to  Confederacy,  67;  and  Davis 
case,  115-116;  on  habeas  corpus 
question,  131-132;  indirectly 
sanctions  President's  suspension 
of  habeas  corpus  writ,  137  n.; 
opinion  in  Milligan  case,  181; 
opinion  in  Vallandigham  case, 
179;  on  invalidity  of  provision 
of  Indemnity  Act  concerning 
second  jury  trial,  212 Jj.;  sus- 
tains Indemnity  Act,  209;  on 
penalizing  of  judges,  203,  204 n.; 
on  military  occupation  of  South, 
222,  227;  members  perform  no 
duties  in  occupied  districts,  229; 
sustains  "presidential  justice," 
230-231 ;  sustains  power  of  Pres- 
ident to  establish  special  court 
in  Louisiana,  232;  circuit  duties 
during  Civil  War,  234 ;  on  valid- 
ity of  ordinary  acts  of  Southern 


States,  237  n. ;  on  penalties 
against  militiamen,  258  n.;  on 
conscription  and  Selective  Serv- 
ice Act,  274;  on  common  law 
procedure  in  confiscation  cases, 
285;  on  duration  of  forfeiture 
in  confiscation  cases,  286;  on  re- 
versionarj'  rights  in  confiscated 
property,  287-288;  upholds  con- 
fiscation, 295;  decree  in  favor  of 
despoiled  British  creditors,  306; 
on  confiscation  as  a  criminal  pro- 
ceeding, 307;  on  "rebel's"  status 
and  standing  in  court,  308,  311; 
on  Federal  tax  in  South,  318  n.; 
decision  in  United  States  vs. 
Lee,  321-322;  and  restoration, 
333-334;  on  restorative  effect  of 
pardon,  332-335,  339;  on  judicial 
function  in  the  forfeiture  of 
property,  359;  on  Federal  rela- 
tions of  State  governor,  421 ;  on 
Virginia  boundary  controversy, 
469-472;  citation  of  cases  on  Vir- 
ginia debt,  476  n.;  decree  in 
Virginia  case,  476 re.;  never  de- 
cided constitutionahty  of  Sedi- 
tion Act  of  1798,  479;  view  as 
to  war  power  of  Congress,  515; 
attitude  toward  Congress  and 
the  President,  518-519;  records 
of,  546-547.  See  also  individual 
justices,  such  as  Marshall,  Ta- 
ney, Chase,  Story,  etc. 

Surrender,  articles  of,  in  relation 
to  prosecutions  for  treason, 
101  ff.;  Sherman's  terms  to  John- 
ston, 149. 

Swann,  Thomas,  Governor  of 
Maryland,  on  Maryland's  claim 
to  compensation  for  slaves,  402. 


Tampico,  Mexico,  occupation  of, 
219  #. 

Taney,  Roger  B.,  Chief  Justice, 
dissents  in  Prize  Cases,  54 ;  opin- 
ion in  Merryman  case  denying 
President's  power  to  suspend 
habeas     corpus     privilege,     84, 


576 


INDEX 


120  J?.,  131,  161-162;  opinion  in 
Dred  Scott  case,  365  n.;  in  Able- 
man  vs.  Booth,  430. 

Tarble's  Case,  431  n. 

Tax,  for  relief  of  drafted  man,  424. 
See  also  direct  tax. 

Tax  sales,  and  Federal  tax  in 
South,  317-323;  and  Arlington 
estate,  320-322. 

Taylor,  Moses,  case  of,  285  n. 

Taylor  vs.  Thompson,  et  al., 
249  n. 

Telegraph,  control  of,  481-484. 

Tennessee,  beginning  of  the  re- 
bellion in,  50/1.;  prosecutions 
for  treason,  90  n.,  97;  e.xpccted 
to  furnish  Federal  troops,  222; 
new  State  officers,  225;  under 
military  rule,  218,  235  n.;  pro- 
ceeds from  confiscation,  289; 
Federal  tax  in,  318  n.;  action  as 
to  slaver>',  389;  "not  knowTi  to 
Congress,"  400  n. ;  denied  repre- 
sentation in  electoral  college, 
401  n. ;  Federal  liability  of  the 
governor,  419 ;  mentioned,  195  n. 

Termessee  (eastern),  compared  to 
western  Virginia,  453-454,  474. 

Tenth  Amendment,  395. 

Territories,  emancipation  in,  365. 

Test  oath,  llOn. 

Te.xas,  relation  to  the  Union,  17; 
secession  declared  null,  24;  war 
ended  in,  50;  reconstruction  of, 
398. 

Texas  vs.  White,  23-24,  221. 

Thirteenth  Amendment,  and  Ken- 
tucky vs.  Palmer,  196  m.;  Lin- 
coln's attitude  on,  383  and  n.; 
relieves  deadlock  on  slavery 
question,  388;  Delaware  refuses 
to  ratify,  389-390;  presented, 
390-391;  ratification  of,  396- 
404;  constniction  in  the  courts, 
401  n. ;  a  mandate  to  the  Nation- 
al Government,  404. 

Thompson,  Justice,  quoted,  10. 

Thorington  vs.  Smith,  238  n. 

Threats-against-the-President  Act, 
527  n. 


Tod,  David,  Governor  of  Ohio, 
inquires  as  to  State  and  Federal 
relations,  413  n. 

Trading- with -the -Enemy  Act 
(1917),  302  n.,  527  n.,  529  n. 

Treason  (law  of),  during  Civil 
War,  74-95;  and  insurrection, 
61,  76;  and  piracy,  66,  in  relation 
to  Confederacy,  62-73,  98  j^.; 
policy  of  Lincoln  administration, 
82-95;  slight  enforcement,  77,  91, 
518;  embarrassment  of  Govern- 
ment as  to  prosecutions,  92; 
prosecutions  after  the  war,  97j!f.; 
constitutional  definition,  74;  at- 
tainder, 75;  constructive  treason, 
75-76;  no  accessories,  76;  giving 
aid  and  comfort,  76;  misprison 
of,  77 ;  penalty  softened,  79-81 ; 
indictments  for,  85;  not  appli- 
cable to  a  recognized  belligerent, 
106  n.;  and  whiskey  insurgents, 
144;  in  Wilson  administration, 
526  if.  See  also  Confederate 
leaders,  secession,  confiscation. 

Treason  Act  of  1790,  provides 
death  penalty,  75;  in  indictment 
of  Davis,  109-110. 

Treason  Act  of  1862,  pp.  80,  99  n.; 
111.  See  also  Confiscation  Act 
of  1862. 

Treasury',  amounts  deposited  as 
proceeds  from  confiscation,  289. 

Treasurj'  Department,  and  Cap- 
tured Property  Act,  325;  and 
restoration  of  property,  336. 

Treaty,  see  Jay's  treaty;  Washing- 
ton, Treaty  of,  etc. 

Trumbull,  Lyman,  Senator  from 
Illinois,  urges  punishment  of 
"traitors,"  99;  sponsors  habeas 
corpus  bill,  130,  191  192  n.;  on 
constitutionality  of  war  meas- 
ures concerning  slavery,  349;  on 
emancipating  clause  of  first  Con- 
fiscation Act,  357  7!..;  explains  ef- 
fect of  Second  Confiscation  Act, 
362;  presents  Thirtcontli  Amend- 
ment, 390-391 ;  expresses  doubt 
as     to    amending    Constitution 


INDEX 


577 


during  the  Civil  War,  396;  and 

suppression   of   Chicago    Times, 

496  n. 
Twiggs    mansion,   seized    at   New 

Orleans,  223  n. 
Tyler  Count}-,  (Western)  Virginia, 

446. 
Tyler  vs.  Defrees,  284  n.,  315. 


Underwood,  Judge  John  C,  atti- 
tude on  Davis  case,  117  n.;  urges 
punishment  of  "traitors,"  98; 
and  confiscation,  286  n.,  329. 
Union,  older  than  the  States, 
18  n.;  and  welfare  of  the  coun- 
try, 23;  declared  indissoluble, 
23-24,  221.  See  also  Texas  vs. 
White. 

Union  Insurance  Co.  vs.  United 
State,  285  ?i. 

Union  rule  in  South.  See  military 
occupation  of  South. 

Unionists  in  the  South,  337-338. 

Upton,  C.  H.,  claims  seat  in  Con- 
gress, 464-465,  464  n. 

Upton,  General  Emory,  on  State 
governors'  functions  in  organi- 
zation of  United  States  army, 
418  n. 

United  States  vs.  Anderson,  339. 

United  States  vs.  Athens  Armory, 
285  n. 

United  States  vs.  1500  Bales  of 
Cotton,  72  n. 

United  States  vs.  100  Barrels  of 
Cement,  60  n. 

United  States  vs.  Diekelman,  227. 

United  States  vs.  Fries,  60  n. 

United  States  vs.  Hart,  285  n. 

United  States  vs.  Klein,  338. 

United  States  vs.  Lee,  321-322. 

United  States  vs.  Louis,  232  n. 

United  States  vs.  Mitchell,  61  n. 

United  States  vs.  Padolford,  324  n. 

United  States  vs.  Rauscher,  24  n. 

United  States  vs.  Reiter,  232  n. 

United  States  vs.  1756  Shares  of 
Stock,  284  n. 

United  States  vs.  Smith,  60 n. 


United  States  vs.  Vigol,  61  n. 

United  States  vs.  Wonson,  211  n. 

United  States  Volunteers,  organi- 
zation of,  418  ?i.  See  ali^o  army, 
State  and  Federal  relations. 


Vallandiqham,  Clement  L.  (Ex 
parte  Vallandigham),  45,  167, 
184 ».,  176-179,  193,  477  n.,  519, 
521. 

Vance,  Z.  V.,  imprisoned,  103  n. 

Vattel,  on  right  of  confiscation, 
298;  on  confiscation  of  debts, 
304;  on  belligerent  right  of 
emancipation,  347  n. 

Venezuela,  emancipation  in,  375  n. 

Venice,  The,  72  n.,  222. 

"Vested  rights,"  365  n. 

Vicksburg,  Mississippi,  military 
preparations  revealed,  486. 

Virginia,  Ex  parte,  204  n. 

Virginia,  ratification  of  the  Consti- 
tution, 1571.;  blockaded,  50; 
treason  cases,  97;  Chase  advises 
against  holding  Federal  Circuit 
Court  in,  234  n.;  sequestration 
law  (during  Revolution),  300; 
tax  sales  in,  320-322;  and  Fed- 
eral Fugitive  Slave  Act,  355; 
portions  excepted  in  Emancipa- 
tion Proclamation,  372  and  n.; 
supervision  of  negro  affairs  in, 
381-382;  confiscation  in,  290,  313, 
329,  330;  Federal  liability  of  the 
governor,  419;  sectionalism  in, 
435-436;  constitution  of  1830, 
435-436;  constitution  of  1830,  p. 
1851,  p.  436;  secession  of ,  437 ;  or- 
dinance of  secession  denounced, 
438,  444;  reconstruction  of,  463, 
466  and  n.;  furnished  25,000 
Union  troops,  465;  controversy 
with  West  Virginia  over  bound- 
ary, 469-472;  debt  controversy, 
475-476  n.  See  also  eastern 
shore  of  Virginia. 

Virginia,  partition  of  (map,  442). 
See  West  Virginia,  formation 
of. 


578 


INDEX 


Virginia  (restored  government) , 
ordinance  for  its  formation,  443- 
444 ;  organization  of,  445  jj. ;  re- 
lation to  Federal  government, 
223  n.,  398,  453  Jj.;  denounced, 
447  n.;  difficulty  in  holding  elec- 
tions, etc.,  447-448;  legislature 
of,  448  #.,  452-453;  chooses 
United  States  senators,  451 ;  leg- 
islature gives  consent  to  forma- 
tion of  new  State,  452;  transfer 
to  Alexandria  and  later  career, 
461-469;  new  constitution,  462; 
representation  in  Congress,  463- 
466;  inconsistency  in  attitude  of 
Congress  toward,  466;  and  con- 
troversy with  General  Butler, 
466-469;  validity  upheld,  470; 
justification  for,  472. 

Virginia  vs.  West  Virginia,  469. 

Volunteers,  United  States.  See 
army,  State  and  Federal  rela- 
tions. 

Vorhees,  Daniel,  protests  against 
indemnity  act,  193. 


Wadb-Davis  Bill,  provision  re- 
garding emancipation,  351 ; 
Sumner's  amendment,  383  n.; 
Lincoln's  pocket  veto,  514. 

Wallace,  General  Lew,  enforces 
confiscation  acts,  148,  283  n. 

Wallach  vs.  Van  Riswick,  288,  334. 

War,  not  anarchy,  28;  may  be  uni- 
lateral, 54;  defined,  61.  See  also 
war  power,  Mexican  War,  Civil 
War,  World  War. 

War  Claims,  Committee  on,  of 
House  of  Representatives,  on 
compensation  for  slaves,  348  71. 

War  courts,  special,  230^.,  514. 

War  crimes,  46.  See  also  Fort  Pil- 
low massacre. 

War  Department,  order  regarding 
control  of  churches,  148;  control 
of  political  prisoners,  151,  155, 
158;  issues  regulations  as  to 
Militia  Act  of  1862,  252-253;  or- 
der as  to  compensation  for  prop- 


erty and  slaves,  367;  controls 
negro  affairs,  382. 

War,  laws  of,  in  Civil  War,  27. 

War-making  power,  in  relation  to 
question  of  State  neutrality, 
408. 

War  of  1812,  no  conscription,  241 ; 
and  confiscation,  300;  British 
action  in  deporting  slaves,  344  Jj. 

War  power,  Anglo-Saxon  view, 
25  f}.;  under  American  Constitu- 
tion, 28-33;  duration,  33-34;  dur- 
ing Civil  War  (in  general),  34- 
35 ;  Browning-Sumner  debate, 
41-43;  State  governor  may  not 
exercise,  422  n.  See  also  mili- 
tary occupation,  Congress,  Pres- 
ident, Lincoln,  dictatorship,  mar- 
tial law,  liaheas  corpus,  arrests, 
conscription. 

War  psychology,  11-12,  527. 

Ware  vs.  Hylton,  296  n.,  299  n., 
300,  304. 

Washington,  Justice  Bushrod,  258. 

Washington,  George,  on  Constitu- 
tion, 3;  and  whiskey  insurgents, 
67,  144. 

Washington,  D.  C,  Davis  indicted 
for  treason,  108;  confiscation 
cases,  288  7?.;  proceeds  from  con- 
fiscation, 289;  telegraph  control, 
481;  mentioned,  149  and  n.; 
165  71.  See  also  District  of  Co- 
lumbia. 

Washington,  Treaty  of,  51  n. 

Wayne  County,  (western)  Vir- 
ginia, 445. 

Webster,  Daniel,  on  right  of  rev- 
olution, 19;  on  State  and  na- 
tional sovereignty,  22. 

Welles,  Gideon,  on  execution  of 
"rebel"  leaders,  99;  on  trial  of 
Davis,  105;  comment  on  Chase, 
132;  on  Cabinet  views  as  to  sla- 
very, 377  71.;  on  effect  of  Eman- 
cipation Proclamation,  384;  on 
West  Virginia  bill,  458;  on  sup- 
pression of  Chicago  Times,  494; 
on  case  of  New  York  World, 
499;  diary,  539. 


INDEX 


579 


Wellington,  Duke  of,  on  martial 
law,  225  n. 

Wells,  H.  H.,  Government  counsel 
in  Davis  case,  107,  109;  mili- 
tary governor  of  Virginia, 
466  n. 

Weston,  Virginia,  445. 

West  Virginia,  prosecutions  for 
disloyalty,  89;  martial  law  in, 
146;  proceeds  from  confiscation, 
289;  excepted  in  Emancipation 
Proclamation,  372  and  n. ;  action 
as  to  slavcrj',  389;  formation  of: 
bibliography,  434  n.;  resistance 
by  Unionists  in  the  western  coun- 
ties, 438;  map,  442;  first  con- 
stitution, 452;  consent  of  "Vir- 
ginia," 452;  process  of  constitu- 
tion making,  452 «.;  bill  in  Con- 
gress, 454  J^.,  456;  attitude  of 
Lincoln  and  his  Cabinet,  456- 
461;  legal  birthday,  461;  con- 
troversy with  Virginia  over 
boundary,  469-472 ;  compared 
with  formation  of  Maine,  474- 
475;  debt  question,  476;  gen- 
eral comment,  472  j^^. 

Whaley,  Kellian  V.,  Representa- 
tive from  Virginia,  464. 

Wheaton,  Henry,  on  confiscation, 
301-302;  on  belligerent  right  of 
emancipation,  347  n. 

Wheeler,  Joseph,  imprisoned, 
103  n. 

Wheeling,    West    Virginia,    prose- 
cutions for  disloyalty,  89;  May 
convention,  1861,  pp.  438-440,  449 
"central     committee,"     439-440 
June  Convention,  1861,  p.  440  #. 
ordinance   for  reorganization   of 
Virginia     government,    443-444 ; 
ordinance    for   new    State,    451 ; 
ratification    of    this    ordinance, 
451-452. 

Wheeling  oath,  444,  447. 

Wheeling  (West  Virginia)  Intelli- 
gencer, 435  n. 

Whiskey  Insurrection,  67,  127,  144, 
145. 

White,   Chief  Justice,   opinion   in 


Selective  Draft  Law  Cases, 
274. 

White,  Horace,  on  Emancipation 
Proclamation,  379. 

Whitfield  vs.  United  States,  324  n. 

Whiting,  William,  on  Constitution, 
6;  on  war  power  over  slavery, 
348-349. 

Wiggins  vs.  United  States,  205  n. 

Wiley,  Leroy  M.,  case  of,  309. 

Wilkinson,  General,  and  Burr  con- 
spiracy, 145  n. 

Willey  Waitman  T.,  chosen  sen- 
ator from  "restored  Virginia," 
451;  admitted  to  Senate,  454; 
fears  veto  of  West  Virginia  bill, 
460  n. 

Williams  vs.  Bruffy,  24  n. 

Wilmington,  North  Carolina,  ex- 
pedition  against,   reported,   486. 

Wilson,  Justice,  296. 

Wilson,  Henry,  Senator  from  Mas- 
sachusetts, and  Militia  Act  of 
1862,  247  n. 

Wilson,  Woodrow,  comment  on 
the  Constitution,  5;  view  as  to 
offending  newspapers,  509;  gov- 
ernment of,  compared  with  that 
of  Lincoln,  523-530;  powers  of, 
524;  on  democracy  at  stake, 
529-530. 

Wilson  administration,  triumph 
of,  in  Selective  Service  Act,  240; 
general  comment,  523-530;  bib- 
liography, 525  n. 

Windsor  vs.  McVeigh,  310  n. 

Wisconsin,  Kemp  case  (habeas 
corpus  question),  132,  134;  con- 
scription in,  37,  251  and  n.;  260; 
drafting  of  aliens,  265-266;  case 
of  Ableman  vs.  Booth,  430. 

Wise,  Henry  A.,  indicted  for  trea~ 
son,  85. 

Wood,  Fernando,  Representative 
from  New  York,  428. 

Woodward,  Justice,  12. 

Woolsey,  T.  D.,  on  confiscation, 
302  n. 

World  War,  criminal  laws  of  Civil 
War  used   during,   78  n.;    Four- 


580 


INDEX 


teenth  Amendment  declared  in 
force,  113  n.;  Germany  under 
martial  law,  146;  conscription, 
240,  274;  treatment  of  enemy 
property,  302  n.,  313  7i. ;  problems 
of,  compared  with  those  of  the 
Civil  War,  523-530;  economic 
mobilization,  524. 
Writs.  See  habeas  corpus,  injunc- 
tion, attachment,  certiorari,  etc. 


Wiirttember?,  Consul  of,  at  Mil- 
waukee, 265. 
Wythe,  George,  110  n. 


Yates,  Richard,  Governor  of  Illi- 
nois, and  Copperhead  legislature, 
83;  activity  in  raising  Federal 
regiments,  413  n.;  and  suppres- 
sion of  Chicago  Times,  494. 


(1) 


BOOKS  OF  AMERICAN   HISTORY 

HISTORY  OF  THE  UNITED  STATES 
By  George  Bancroft 

Bancroft's  history  of  the  United  States  from  the  dis- 
covery of  the  continent  to  the  establishment  of  the  Con- 
stitution stands  as  a  cornerstone  of  the  recorded  history 
of  America.    6  vols. 

A   HISTORY  OF  THE  PEOPLE  OF  THE  UNITED 

STATES 
By  John  Bach  McMaster 

The  chief  theme  of  this  great  work  is  the  history  of 
the  people  themselves.  All  of  McMaster's  art  in  writ- 
ing, great  learning,  and  wonderful  powers  of  research, 
go  to  make  this  a  classic  among  American  historical 
works.    8  vols.     Illustrated. 

THE  UNITED  STATES  IN  THE  WORLD  WAR 
By  John  Bach  McMaster 

Written  with  the  events  before  the  eye,  but  with 
conspicuous  fair-mindedness,  Professor  McMaster's  two 
volume  history  follows  the  course  of  aflfairs  which 
brought  America  into  the  war,  and  then  fully  sum- 
marizes American  participation.  Useful  for  reference 
and  highly  readable. 

THE  TRANS-MISSISSIPPI  WEST 
By  Cardinal  Goodwin 

An  interesting  and  important  but  too  little  studied 
phase  of  our  history  presented  in  an  original  and  au- 
thoritative book.  Professor  Goodwin  describes  the 
movement  of  a  people  by  which  the  vast  territory  west 
of  the  Mississippi  was  explored,  developed  and  made 
an  integral  part  of  our  country.  The  period  covered 
is  from  the  Louisiana  Purchase  to  1853. 


D. 
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APPLETON  AND  COMPANY 


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FOUR  HISTORICAL  CLASSICS 


HISTORY  OF  EUROPEAN  MORALS  FROM 

AUGUSTUS  TO  CHARLEMAGNE 
By  W.  E.  Lecky 

A  careful  and  scholarly  study  of  the  changes  that 
took  place  in  the  moral  beliefs  of  civilized  people.  It 
covers  a  vast  field  with  remarkable  thoroughness,  in- 
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higher  literature. 

HISTORY    OF    THE    RISE    AND    INFLUENCE    OF 

THE  SPIRIT  OF  RATIONALISM  IN  EUROPE 
By  W.  E.  Lecky 

This  is  the  work  which  gave  Lecky  his  great  reputa- 
tion. In  it  he  traces  that  spirit  which  submits  to  the 
dictates  of  reason  and  of  conscience  the  phenomena  of 
history,  theology  and  ethics.     2  vols. 

HISTORY  OF  CIVILIZATION  IN  ENGLAND 
By  H.  T.  Buckle 

This  is  an  exhaustive  history  of  civilization  in  Eng- 
land, showing  the  effect  of  economic  changes  on  a 
nation's  intellectual  development,  the  effects  on  civiliza- 
tion of  wars,  the  effects  of  international  relations  upon 
the  individual.     2  vols. 

HISTORY  OF  CIVILIZATION  IN  EUROPE 
By  J.  P.  G.  Guizot 

The  great  French  scholar's  greatest  work.  Euro- 
pean development  from  the  social  rather  than  the 
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terial for  absorbing,  fruitful  study. 


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V 


